Number 115

March 2023

PREVENTION OF CRIME AND
TREATMENT OF OFFENDERSUNAFEI’S RESOURCE MATERIAL SERIESRESOURCE MATERIAL SERIES NO. 115
FEATURED ARTICLESCreating Inclusive Societies:
The Reduction of Reoffending in the Context of the UN Crime Programme
Dr. Matti Joutsen (Finland)International Cooperation of the Asia Crime Prevention Foundation (ACPF)
and the Crime Prevention Practitioners Association of the Philippines (CPPAP)for the Enhancement of Criminal Justice
Mr. Severino H. Gaña Jr. (Philippines)

VISITING EXPERTS’ PAPERS
Rehabilitating Young Adult Offenders
Dr. Garner Clancey (Australia)
Violence Against Children and Justice for Children
in the Context of National Security and Counter Terrorism
Ms. Hannah Tiefengraber (UNODC)

UNAFEI’S EVENT ON REDUCING REOFFENDING WITH PNI EXPERTS
Enhancing Technical Assistance to Reduce Reoffending and Promote Inclusive Societies
Chair’s Summary (UNAFEI)The United Nations Asia and Far East Institutefor the Prevention of Crime and the Treatment of Offenders

PREVENTION OF CRIME
AND TREATMENT OF
OFFENDERSRESOURCE MATERIALSERIES NO. 115

UNAFEI
Akishima, Tokyo, JapanMarch 2023

MORINAGA Taro
Director
United Nations
Asia and Far East Institutefor the Prevention of Crime andthe Treatment of Offenders(UNAFEI)
2-1-18 Mokuseinomori, Akishima-shi, Tokyo, Japan
unafei@i.moj.go.jp

CONTENTS
INTRODUCTORY NOTE...........................................................................................................................................................ⅲ
PART ONEUNAFEI’S 60TH AND ACPF’S 40TH ANNIVERSARY EVENT⃝ Creating Inclusive Societies: The Reduction of Reoffending in the Context of the UN
Crime Programme
by Dr. Matti Joutsen (Finland)........................................................................................................................................................ 3⃝ International Cooperation of the Asia Crime Prevention Foundation (ACPF) and the
Crime Prevention Practitioners Association of the Philippines (CPPAP) for the
Enhancement of Criminal Justice
by Mr. Severino H. Gaña Jr. (Philippines)............................................................................................................................ 9PART TWOWORK PRODUCT OF THE 179TH INTERNATIONAL TRAINING COURSEJUVENILE JUSTICE AND BEYOND – EFFECTIVE MEASURES FOR THE
REHABILITATION OF JUVENILES IN CONFLICT WITH THE LAW AND
YOUNG ADULT OFFENDERS
Visiting Experts’ Papers⃝ Rehabilitating Young Adult Offenders
by Dr. Garner Clancey (Australia)........................................................................................................................................... 17⃝ Violence Against Children and Justice for Children in the Context of National Security
and Counter-Terrorism
by Ms. Hannah Tiefengraber (UNODC)............................................................................................................................... 23

Participants’ Papers⃝ Implementing Effective Rehabilitation and Community Reintegration Practices for
Young Offenders in Singapore
by Ms. Tay Yan Lee Angeline (Singapore)........................................................................................................................ 33⃝ The Juvenile Justice System in Sri Lanka through a Critical Eye
by Ms. Jalashi Changa Lokunarangoda (Sri Lanka)................................................................................................... 39

Report of the Course⃝ The 179th International Training Course
by Prof. MIYAGAWA Tsubura (UNAFEI) ................................................................................................................... 47i

PART THREE
THE 24TH UNAFEI UNCAC TRAINING PROGRAMMEIDENTIFYING, TRACING, FREEZING, SEIZING, CONFISCATING AND
RECOVERING PROCEEDS OF CORRUPTION: CHALLENGES AND SOLUTIONSParticipants’ Papers⃝ Petrobras: Settlement of a Foreign Bribery Case and Implications for Asset Recovery
by Mr. Aldo de Campos Costa (Brazil)................................................................................................................................. 53⃝ Best Practices in Kenya on Investigation and Prosecution of Corruption and Related
Offences, Asset Recovery and International Cooperationby Ms. Judy Bliss Thuguri (Kenya)......................................................................................................................................... 61⃝ Maldives: Challenges in Recovering Proceeds of Corruption and Solutions
by Ms. Aminath Shama Naseer (Maldives)........................................................................................................................ 73⃝ Criminal Justice Response to Corruption
by Mr. Butrus Yai (South Sudan)............................................................................................................................................. 79⃝ The Asset Recovery Regime in Sri Lanka – Illegally Derived Assets
by Ms. G.A.D. Sajeevani (Sri Lanka)..................................................................................................................................... 85

Report of the Programme⃝ The 24th UNAFEI UNCAC Training Programme
by Prof. YAMANA Rompei (UNAFEI)................................................................................................................................ 95

SUPPLEMENTAL MATERIALENHANCING TECHNICAL ASSISTANCE TO REDUCE REOFFENDING AND
PROMOTE INCLUSIVE SOCIETIES⃝ Chair’s Summary
by UNAFEI .............................................................................................................................................................................................101

APPENDIX........................................................................................................................................................................................... 111
Photographs⃝ The 179th International Training Course.........................................................................................................................113⃝ The 24th UNAFEI UNCAC Training Programme...................................................................................................114

RESOURCE MATERIAL SERIES INDEX.......................................................................................................... 115
ii

INTRODUCTORY NOTE
It is with pride that the United Nations Asia and Far East Institute for the Prevention of Crime and theTreatment of Offenders (UNAFEI) offers to the international community this issue of Prevention of Crime
and Treatment of Offenders, UNAFEI’s Resource Material Series No. 115. After holding training courses
online for two and a half years due to the Covid-19 pandemic, I am particularly pleased to inform you that,with the exception of the 179th International Training Course, all the other programmes covered in this issue
took place in person in Tokyo, Japan.
On 22 October 2022, UNAFEI and the Asia Crime Prevention Foundation (ACPF) commemorated their
60th and 40th anniversaries, respectively, by hosting a symposium at the Ministry of Justice of Japan. The
theme of the event was “Creating Inclusive Societies: Approaches to Reducing Reoffending”. This issue
contains the presentation papers of two of the lecturers and esteemed UNAFEI alumni: Dr. Matti Joutsen(Special Advisor, Thailand Institute of Justice) and Mr. Severino H. Gaña Jr. (International Director, ACPF).
This issue also contains the work product of the 179th International Training Course, on “Juvenile Justiceand Beyond – Effective Measures for the Rehabilitation of Juveniles in Conflict with the Law and Young
Adult Offenders”, and the 24th UNAFEI UNCAC Training Programme on “Identifying, Tracing, Freezing,
Seizing, Confiscating and Recovering Proceeds of Corruption: Challenges and Solutions”. Both of these
programmes were held to promote Goal 16 of the 2030 Agenda for Sustainable Development, which
underscores the importance of governance and the rule of law in promoting peaceful, just and inclusive
societies.
Also included is the Chair’s Summary of UNAFEI’s Event on Reducing Reoffending with PNI Experts,
which was held at UNAFEI from 18 to 21 October 2022. The meeting addressed the theme of “Enhancing
Technical Assistance to Reduce Reoffending and Promote an Inclusive Society”.
I would like to pay tribute to the contributions of the Government of Japan, particularly the Ministry ofJustice, the Japan International Cooperation Agency and the Asia Crime Prevention Foundation, for providing
indispensable and unwavering support to UNAFEI’s international training programmes and other activities.
Finally, I would like to express my heartfelt gratitude to all who so unselfishly assisted in the publicationof this series.

March 2023

MORINAGA Taro
Director of UNAFEI

iii

PART ONE
RESOURCE MATERIAL SERIES
No. 115Work Product of UNAFEI’s 60thand ACPF’S 40th Anniversary Event

UNAFEIVISITING EXPERTS’ PAPERSCREATING INCLUSIVE SOCIETIES: THE REDUCTION OF
REOFFENDING IN THE CONTEXT OF THE UN CRIME PROGRAMME
Matti Joutsen*

I. UNAFEI
Three things have brought us together at this Symposium. First, the celebration of the 60th anniversaryof the United Nations Asia and Far East Institute for the Prevention of Crime and the Treatment of
Offenders (UNAFEI). Second, a shared interest in the reduction of reoffending. And third, the leadershipdisplayed by Japan in the development of United Nations guidelines on this topic.
UNAFEI is the oldest institute in the United Nations Crime Programme Network, and has a rich legacyof activities over the past sixty years. For this reason, it has a special place in the UN Crime Programme.
UNAFEI’s distinctive approach to promoting good practice in crime prevention and criminal justice has
been the organization of training courses and seminars for practitioners. Especially over the past two
decades, UNAFEI has expanded its technical assistance format to include, for example, bilateral andsubregional seminars. It has also organized Workshops at UN Crime Congresses, thematic workshops atsessions of the UN Crime Commission, and ancillary meetings and side events, often in cooperation withMember States as well as with other institutes in the UN Crime Programme Network.
The establishment of UNAFEI in 1962 marked a significant growth of the capacity of the UN Crime
Programme to provide technical assistance in the region, and beyond. From Japan’s point of view, thetraining courses and seminars have the added benefit of providing the participants with information on
Japanese experiences and developments in crime prevention and criminal justice, as well as insights into
Japanese culture more broadly.
In 1982, the Asia Crime Prevention Foundation (ACPF) was established to support UNAFEI programmes,
for example by co-organizing public lectures and study tours. The ACPF also provides a framework for the
networking of UNAFEI alumni, both within Japan and internationally. This is an important function,
considering that over the years, more than 6,200 criminal justice practitioners have participated in UNAFEI’s
courses and seminars, and many of them have moved on to play leading roles in crime prevention andcriminal justice in their own country.

II. THE REDUCTION OF REOFFENDING IN THE UN CRIME PROGRAMMEThe second thing that connects us here today is an interest in the reduction of reoffending.
Corrections in general has been the subject of the active international exchange of experience for over
150 years. It has been endlessly debated in academic and professional conferences, dealt with by the Leagueof Nations, and specifically included in the UN Crime Programme from the outset.
Over the course of those 150 years, the theory of correctional treatment has evolved, and the priority
given to it on the global level has changed. At first, the focus in criminology was on the individual offender.
The goal was to diagnose the specific “cause of crime”, which would guide the practitioner in proper
treatment of the offender in a custodial environment.
* Special Adviser, Thailand Institute of Justice.

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RESOURCE MATERIAL SERIES No. 115

This explains why, when the UN Crime Programme was established seventy years ago, the topics
identified by the General Assembly dealt almost solely with corrections: the assessment of offenders before
sentencing; institutional treatment and different prison regimes; the training of correctional staff; pre-releasetreatment; and after-care.
From today’s perspective, we might note the relative absence in that first formulation of the UN Crime
Programme of such issues as the victim of crime, the work of the police, the prosecutor and the judge, anddiscussions of specific forms of crime such as property crime, violent crime, and economic crime. These
would come, but many years later.
Similarly, the First UN Crime Congress, held in 1955, dealt almost solely with corrections. The fiveCongress themes were:•  	the proposal for Standard Minimum Rules for the Treatment of Prisoners;• 	 selection and training of personnel for penal and correctional institutions;•  	open penal and correctional institutions;•  	prison labour; and (as the only non-corrections-related topic)•  	the prevention of juvenile delinquency.
Since those early years, the approach to correctional treatment has changed.
• 	 We are more aware of how the economic and social environment can lead an individual to crime,• 	 We are more aware of the potentially negative impact that the operation of the criminal justice systemitself may have on the individual suspect or offender,• 	 There is a growing concern about prison overcrowding, and• More attention is being paid to community-based sanctions and other measures, including restorative
justice.
Each successive UN Crime Congress has reflected our changing understanding of, and our national
priorities in, crime prevention and criminal justice, including corrections. For example, the Third and the
Fourth UN Crime Congresses reflected a continuing shift towards viewing crime not so much as an issue ofindividual conduct, but more as an issue of economic and social development.
It can also be argued that the concerns and approach of the host country inevitably colour the discussions
at a Congress. The Third UN Crime Congress, held in Stockholm in 1965, was the first UN Crime Congress
to examine the specific question of reoffending: one of the themes was “Measures to combat recidivism.” Thiswas high on the agenda of the host government, Sweden.
The agenda items at the Fourth UN Crime Congress, held in Kyoto in 1970, dealt with social defence
policies in relation to development planning, public participation in crime prevention and control, the Standard
Minimum Rules on the Treatment of Prisoners, and the organization of research for policy development insocial defence – issues which Japan has regarded as important in crime prevention and criminal justice. Allof these issues have a corrections aspect.
Beginning during the 1980s and the 1990s, however, national representatives gathered at UN Crime
Programme meetings in Vienna were increasingly voicing concerns about transnational crime as a security
threat, to the extent that “domestic” criminal justice concerns such as corrections and the reduction of
reoffending received less and less attention. This is reflected in the topics considered at meetings in Vienna.
It is even more visible at the UN Crime Congresses. The Sixth UN Crime Congresses in 1980, and theSeventh UN Crime Congress in 1985 – forty years ago! – were the last UN Crime Congresses to have aseparate theme specifically devoted to corrections.1
Thus, at the same time as the scope of the international debate on corrections and reoffending expanded
1

These Congress themes were the deinstitutionalization of corrections and its implications for the residual prisoner (1980),
and criminal justice policies in relation to problems of imprisonment, other penal sanctions and alternative measures (1985).

4

VISITING EXPERTS’ PAPERS
to include different concerns and new approaches, a second trend in the United Nations was towards
relatively less discussion at the global level on these themes.
This is not to say that corrections disappeared entirely from the UN Crime Programme, or even from the
UN Crime Congresses. Instead of being discussed at global meetings in Vienna or as separate themes at UN
Crime Congresses, the topic was being dealt with by members of the Programme Network of Institutes, inCongress workshops, as well as in technical cooperation projects conducted by the UN Secretariat throughits growing network of field and regional offices.
The Programme Network of Institutes, for example, has cooperated in organizing Workshops at the UN
Crime Congresses, and several of these have been related to corrections. In Kyoto last year, the topic was“Reducing reoffending: Identifying risks and developing solutions.” UNAFEI, of course, had the primary
responsibility for this most recent workshop.
Several of the institutes in the Network, in addition, have been active in respect of corrections. For
example, the Australian Institute of Criminology, HEUNI, ILANUD, the Korean Institute of Criminal Policy,
the National Institute of Justice (in the United States) and UNICRI have published studies and technicalreports on different aspects of corrections. The newest PNI member, the Thailand Institute of Justice, hasbeen particularly active, as befits an institute established in particular to work on issues related to thepressing problems faced by women offenders.2
But there is one PNI member that has been pre-eminent in dealing with corrections: UNAFEI. Look overthe long list of UNAFEI activities, and you will find at least one UNAFEI international training course or
seminar on corrections almost every single year.
Arguably the most influential single UNAFEI contribution to the UN Crime Programme was theorganization of one expert meeting.3 A draft proposal formulated at that meeting, following further revision,
led to the adoption by the UN General Assembly of the United Nations Standard Minimum Rules for Noncustodial Measures. In recognition of its provenance, it is officially known as the Tokyo Rules.
The Tokyo Rules are an example of UN standards and norms. This term refers to instruments adopted
by the General Assembly and ECOSOC that are intended as benchmarks in the development of crime
prevention and criminal justice. As noted on the UNODC website, “These standards and norms provide
flexible guidance for reform that accounts for differences in legal traditions, systems and structures whilst
providing a collective vision of how criminal justice systems should be structured.”4
Over the years, a considerable number of UN standards and norms have been adopted. The first was theStandard Minimum Rules on the Treatment of Prisoners. Originally adopted in 1955, these have been
updated in 2015. The revised version is known as “the Nelson Mandela Rules.” In addition to the Tokyo Rules
and the Nelson Mandela Rules, there are two other key standards and norms that deal with corrections, theUnited Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women
Offenders (the Bangkok Rules), and the Basic Principles on the Use of Restorative Justice Programmes in
Criminal Matters.
Standards and norms are commonly referred to as “soft law” instruments, in the sense that they provide
guidance but are not legally binding. This does not mean that standards and norms are meaningless, andhave no practical effect. Indeed, in many Member States, the Nelson Mandela Rules, the Tokyo Rules andthe Bangkok Rules have been used as a basis in legal reform.
Especially during the 1990s, there was considerable debate in the UN Crime Commission over the statusof the standards and norms, and over whether new instruments should be developed. Some key Member
States argued that the UN supposedly already has a sufficient number of standards and norms, and the focus
2

A background document is available on publications by the various institutes on corrections and related issues.
Draft of Proposed United Nations Standard Minimum Rules for the Non Institutional Treatment of Offenders, UNAFEI,
1988.
4
https://www.unodc.org/unodc/en/commissions/CCPCJ/ccpcj-standards-and-norms.html
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of future activities should be on implementation on the national and local level, through technical assistanceprojects, training and research. Why should the UN do more on the global level?
There are several ways to answer that question. We are constantly learning from research and experience.
The global exchange of experience helps to identify promising approaches, and how to adapt the standards
and norms to the national and local context. Earlier standards and norms may need to be updated, as
happened with the Nelson Mandela Rules. We may become aware of significant gaps in the standards andnorms that need to be filled with new instruments, as happened with restorative justice, and with thetreatment of women offenders.
Furthermore, the earlier UN standards and norms are essentially minimum standards, and deal, forexample, with the rights of the defendant and the convicted offender. More recent standards and norms often
take the form of guidelines. They are intended to be practical, to inform practitioners around the world as
to what appears to “work,” and what seems promising.
The Sustainable Development Goals, in turn, stress the importance of a cross-cutting approach to different
fundamental goals. Member States should seek to balance social, economic and environmental sustainability.
If we want progress in preventing and countering transnational crime, we need at the same time to workon the performance of the domestic criminal justice system, and that includes corrections. We still have a lot
to learn from one another also on the global level.

III. PLACING THE PROPOSED GUIDELINES ON THE REDUCTION OF
REOFFENDING INTO THE OVERALL CONTEXT OF JAPAN’S CONTRIBUTION TO
THE UNITED NATIONS CRIME PROGRAMMEAll of this helps to answer the question of why we need to continue working on United Nations standards
and norms. This brings me to the third thing that I mentioned as having brought us together today: The
leadership displayed by Japan in the development of UN guidelines on the reduction of reoffending. You may
not be aware of the remarkable extent to which, time and time again, Japanese experts have been involved
when key decisions have been made, not just on the draft guidelines, and not just on corrections, but more
broadly in the UN Crime Programme.
The Meiji Restoration in Japan in 1868 came at an auspicious time, when broader international cooperation
began to take shape in crime prevention and criminal justice. Practitioners and policymakers from different
countries started to exchange their experiences and insights at international conferences. For example,
Japan’s diplomatic representative to Tsarist Russia, Minister Tokujiro Nishi, attended the Fourth Congressof the International Penal and Penitentiary Commission (IPPC), held in St. Petersburg, Russia, in 1890. Japan
continued to send delegations to subsequent IPPC Congresses.
When the United Nations was established, its work on crime prevention and criminal justice was largely
a continuation of the work of the IPPC. The broad outline of the work of the UN is familiar to many of you:the sessions of the UN Crime Commission, the organization of UN Crime Congresses (which continue thetradition started by the IPPC), the development of standards and norms, the activity of UNAFEI and theother institutes that form the UN Crime Programme Network, as well as the extensive technical assistance.
Before the Crime Commission was established in 1991, there was a much smaller body, the UN Crime
Committee. Only an alternating handful of experts attended – at first, only four or five individuals at eachmeeting. Vice Minister of Justice Yoshitsuga Baba attended the meetings in 1965 and 1969, and Mr. Atsushi
Nagashima (as the personal representative of Vice Minister Baba) attended the 1966 meeting. Consideringthat by 1960 the UN had one hundred Member States, it is fair to say that during these early years, a
disproportionately large number of UN Crime Committee participants were Japanese.
Japanese experts have also been active in the UN Secretariat. In order to help prepare the Fourth UN
Crime Congress, a Japanese civil servant, Mr. Minoru Shikita, was sent to the UN Secretariat, from 1967 to
1970. He served ultimately as the Officer-in-Charge of the Secretariat unit dealing with crime and justice, and6

VISITING EXPERTS’ PAPERS
then as the Deputy Executive Secretary at the Fourth UN Crime Congress itself. He returned to the UN
Secretariat during the 1980s, to serve as the Chief of the same UN Secretariat unit. In this capacity, he was
responsible also for the organization of the Seventh UN Crime Congress in 1985.5
I have already mentioned that during the 1980s, some Member States wanted a change in the UN Crime
Programme priorities. They argued that the growth of transnational crime required a more action-oriented
UN Crime Programme, one which they believed was not being provided by the small UN Crime Committee,
which – again in their view – seemed to be devoting much of its time to the drafting and adoption of “softlaw” resolutions.
The discussions ultimately led to a General Assembly decision to restructure the UN Crime Programme
in 1990 and 1991. Much of these discussions took place within the framework of the UN Crime Committee
itself. I am sure that by now it would not surprise you to hear that the chairperson of the Committee at thatdecisive time was Japanese: Mr. Minoru Shikita, who took over this position in 1988.
The most notable and ultimately far-reaching structural change was that the UN Crime Committee was
replaced by the United Nations Crime Commission. The Commission consists of 40 Member States, elected
for three-year terms. So far, over a hundred Member States have served on the UN Crime Commission for
at least one term. Of these countries, only six have been re-elected time after time, without interruption,
since 1992: Brazil, China, Iran, the Russian Federation, the United States – and Japan.6
Moreover, Japan’s active involvement is also reflected in the composition of the Bureau of the UN Crime
Commission: the chairperson, three vice-chairpersons, and rapporteur at each session, who are responsible
for guiding the discussions. There have so far been thirty sessions of the Commission. A Japanese
representative was elected to the Bureau a total of six times, and in three of these cases, as chairperson.7
Thus, a disproportionately large number of UN Crime Commission participants have been Japanese, andin addition they have served disproportionately often in positions of responsibility.
The Fourteenth UN Crime Congress, held in Kyoto in March 2021, can be regarded as the epitome – sofar – of the contribution of Japan to the UN Crime Programme. Its planning and organization showcased thecontribution of many Japanese agencies and individuals (in particular the Ministry of Justice, the Ministry ofForeign Affairs, and UNAFEI).
Organizing any international conference requires a considerable effort. Organizing a major global
conference in the middle of a global pandemic would seem the stuff of an organizer’s nightmare. Due largely
to the determined efforts of Japan, the Fourteenth UN Crime Congress was held successfully, although in a
hybrid format, with only a few hundred participants on-site, and the vast majority participating online fromaround the world. The Kyoto Congress set the pattern for how UN hybrid conferences can be organized.
At earlier UN Crime Congresses, one of the most difficult tasks had been the negotiation of the Congress
Declaration. The host government of Japan was well aware that in order to have the Kyoto Declaration
adopted during the opening ceremony would require very careful preparation and wide consultations withMember States. At the same time, the host government wanted a Declaration that would identify the various
priorities.
In this, Japan clearly succeeded. The Kyoto Declaration is remarkably substantive, balanced, wellstructured and well-written.8 No longer does transnational crime appear to dominate the UN Crime
5

Shikita-sama has served in a number of roles in Japan and internationally. He has also been prosecutor, professor, Deputy
Director and Director at UNAFEI, and chairperson of the ACPF.
6
In addition, several countries have served with only a few brief “gap years.” Among them are Austria, Canada, Indonesia,
Mexico, Nigeria, Pakistan and Thailand.
7
A Japanese representative served as chairperson of the UN Crime Commission at the sessions in 1996, 2017 and 2022. A
Japanese representative served as vice-chairperson at the sessions in 2015, 2016 and 2021.
8
Earlier Congress Declarations were negotiated over a protracted period of time in advance of the Crime Congress, andthen during long hours extending at times late into the night at the Congress venue itself. As a result, the text tended at

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RESOURCE MATERIAL SERIES No. 115
Programme agenda; I would say that Japan’s leadership has helped to restore a balance between transnational
crime, and such domestic crime prevention and criminal justice concerns as corrections. The Kyoto
Declaration also very clearly approaches crime and justice through the framework of the Sustainable
Development Goals.
The text of the Kyoto Declaration is the result of consensus among Member States, but it can be seen tohave a Japanese imprint. One can see nods to such Japanese institutions as voluntary probation officers. The
concept of a “culture of lawfulness,” which many foreign observers readily associate with Japan, had arousedsome heated criticism by a few Member States largely on the grounds that it was not “agreed language.”
Nonetheless, it found its way into the Kyoto Declaration. And most importantly for today’s Symposium, theKyoto Declaration calls for work on the reduction of reoffending.9
Overall, Japan has emerged as one of the major contributors to the United Nations Crime Programme.
Its contribution has been institutional, personal and substantive.
The institutional contribution of Japan has been seen in the sessions of the UN Crime Commission, andin the extensive technical assistance provided by UNAFEI. For example, the 6,200 practitioners who haveattended UNAFEI events have helped to strengthen their respective criminal justice systems. Japan also has
the distinction of being the only UN Member State to have organized two UN Crime Congresses, in 1970 andin 2021.
The greatest personal contribution of a Japanese representative to the UN Crime Programme isundoubtedly that of Mr. Minoru Shikita. However, I would like to draw attention also to the successful workof Minister of Justice Yoko Kamikawa in guiding the preparations for the Fourteenth UN Congress, and of
H.E. Ambassador Takeshi Hikihara in the negotiations in Vienna, including the difficult work on the Kyoto
Declaration.
Japan’s approach to negotiations can be described as low-keyed and constructive, seeking to avoid
confrontation and to find ways to take the Crime Programme forward. This has been helped by the fact thatfor over sixty years, Japan has been a consistently active participant in these negotiations.
Since decisions within the UN Crime Programme are made by consensus, it is not possible to definitelydetermine how Japan’s participation has influenced the substance of the Programme. Nonetheless, it can beargued that over the years, several aspects of Japanese criminal policy have influenced the evolution of the
UN Crime Programme. Among these are efforts to promote greater community involvement in crime
prevention, such as through the use of voluntary probation officers; and to strengthen networking among
practitioners in order to foster the international exchange of promising practice.
And today, we can recognize how the sustained Japanese interest in decreasing the prison population,
improving institutional corrections, and expanding the use of non-custodial measures in order to reduce
reoffending is helping us to formulate new UN guidelines.
My conclusion is that Japan is a major global power in the UN Crime Programme, and is recognized assuch by its peers, the other Member States.
I can also say that all of this is a record of which Japan can be proud.
times to be rather rambling, with the readability suffering from the layers of last-minute amendments. The structure andstyle of the Kyoto Declaration are much clearer and more straightforward.
9
Note can also be made of the references to the establishment of regional networks for practitioners, and involving youth
in crime prevention forums, topics that Japan has identified as areas in which it intends to continue contributing to the UN
Crime Programme. At a side event organized during the 2022 session of the UN Crime Commission, Assistant Vice Minister
Noriko Shibata described Japan’s follow-up work to the Kyoto Congress as being based on three pillars, one of which was
the work on the guidelines on the reduction of reoffending. In respect to regional networks for practitioners, in January 2022
Japan organized an Asia-Pacific regional forum on mutual legal assistance that brought together about 130 participants. A
second meeting is planned for January 2023. In respect to youth, in October 2021 Japan organized the First Global Youth
Forum on a Culture of Lawfulness. (Personal notes by the author from the 2022 session of the UN Crime Commission.)8

INTERNATIONAL COOPERATION OF THE ASIA CRIME PREVENTIONFOUNDATION (ACPF) AND THE CRIME PREVENTION PRACTITIONERSASSOCIATION OF THE PHILIPPINES (CPPAP)FOR THE ENHANCEMENT OF CRIMINAL JUSTICE
Severino H. Gaña, Jr.*

It gives me great pleasure to congratulate the Asia Crime Prevention Foundation (ACPF) Chairman
Mikinao Kitada, ACPF Vice Chairman Terutoshi Yamashita,   ACPF Programme Management Bureau
Director Hiroyuki Yoshida, Members of the ACPF Board of Directors, Staff and Supporters of the ACPF on
the occasion of our milestone 40th Anniversary, as well as, to the United Nations Asia and Far East Institutefor the Prevention of Crime and Treatment of Offenders (UNAFEI) Director Taro Morinaga, Deputy Director
Irie Junko, UNAFEI Professors and Staff on its 60th or Diamond year. My heart is happy with pride forhaving been a part of UNAFEI and ACPF’s productive years in the field of crime prevention and treatment
of offenders.
As mentioned in the introduction, I have been a Public Prosecutor of the Department of Justice in thePhilippines, for 35 years.  During that period, I handled many cases and endeavours, several of which I amvery proud of, related to international cooperation for the enhancement of criminal justice, such as:
1.
2.
3.
4.
5.

The development of the Philippines-Japan Halfway House in 1996;
Activation and Enhancement of Volunteer Probation Aides with the assistance of UNAFEI;The conviction of Kosumi Yoshimi in Japan for murder and arson;
The conviction of Chow On Park alias Haruhiko Arai in Japan for Abandonment of a Corpse;
The rescue of Filipino women trafficked in Malaysia and the eventual conviction of the accused
Singapore National Eugene Beng Hua Lim a.k.a Alfred Lim in Malaysia for Human Trafficking.

Some of you may wonder, “How did I, a humble public prosecutor in the Philippines, contribute to thesuccess of the above-mentioned projects and cases?”
It started about 31 years ago, when I graduated from UNAFEI’s 89th International Training Course withthe theme “Effective and Innovative Counter-Measures Against Economic Crimes”. Since then, I have been
invited to UNAFEI’s International Trainings and Seminars, as a visiting expert on various subject matterson Criminal Justice and subsequently at important events of ACPF.  My membership and involvement in
ACPF as one of its International Directors, is borne out of my association with UNAFEI. The bond goes longand is prolific.
At UNAFEI, I was able to discourse on important subject matters including that of transnational organizedcrimes, firearm regulation, human trafficking, whistle-blower security and protection, and criminal trials.  My
humble contributions to UNAFEI in the form of at least (10) presentation papers now form part of its
published resource materials.
In those thirty-one (31) years, I have certainly gained a great wealth of information and experience thathave moulded me into a more aware, concerned and passionate justice worker not only for my home country,
the Philippines, but for the community of nations as a whole.  I should say that UNAFEI played a big role inmoulding me into what I am now and for whatever I have contributed to my country, and to some extent,
to the international community.

* Attorney, Manila, Philippines.

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I. THE PHILIPPINES-JAPAN HALFWAY HOUSE (PJHH)
My membership in the ACPF is especially highlighted by my having met and associated with the theneminent Mr. Minoru Shikita, ACPF’s former Chairman that led to the creation of the first Halfway House in
the Philippines, the Philippines-Japan Halfway House (PJHH) in 1996, which was constructed inside the
National Bilibid Prison Reservation Compound in Muntinlupa City, Philippines. Japanese Architect Tadao
Ando, a Pritzker Awardee, also donated his services and designed the facility.  The PJHH is a cooperative
venture between the Philippines and Japan, made possible through the help of the Asia Crime Prevention
Foundation (ACPF) –Tokyo. The benevolence of the Asia Crime Prevention Foundation was coursed throughits Filipino sister organization the Crime Prevention Practitioners Association of the Philippines (CPPAP).
After the construction of the facility in 1996, the ACPF and the Nagoya West Lions Club continued to
donate resources and supported the implementation of programmes in the PJHH. Equipment, a vehicle andtools were acquired. Another 180-square-meter structure was built for the training and workshop andcompleted in November 2000 with funds provided by Nagoya West Lions Club, where regular training,
workshops and vocational courses are being held.
Since 1997, the facility has been able to service 608 clients. Programmes and services include caseworkand counselling, productivity training, medical and health services, homelife services, skills training andvocational education and therapeutic community modality application modules.
For more than two decades now, the Philippines-Nagoya Japan Halfway House has served as a temporary
home for both pre-release and released prisoners where they receive support for their physical, social,
spiritual, including economic growth. Its programmes prepare its clientele of reformed prisoners to bereintegrated into the society through counselling, skills training and job placement.

II. ACTIVATION AND ENHANCEMENT OF VOLUNTEER PROBATION AIDESWITH THE ASSISTANCE OF UNAFEIIn the Philippines, the treatment of offenders and individuals who are in conflict with the law is undertakenby the government through the Department of Justice (DOJ), the Department of the Interior and Local
Government (DILG), and the Department of Social Welfare and Development (DSWD).  Through the Boardof Pardons and Parole (BPP) and the Parole and Probation Administration (PPA), the DOJ formulates,
implements and monitors programmes and activities for offenders on probation and parole.  Enlistment andtraining of then Volunteer Probation Aides (VPAs) started in 1977, while the PPA was preparing for theoperationalization of the national probation programme. Towards 1980, the VPA programme dwindled fromaround 2,123 VPAs to only 100, due to budgetary limitations in the reimbursement of travelling expenses.
Providentially, Japan, through UNAFEI, came to their rescue.  Consistent with its objectives, UNAFEI
intensified and enhanced its training programme on the prevention of crimes and treatment of offenders.  
The Philippine-Japan Joint Seminar on “Enhancing Community Involvement in Crime Prevention “which washeld in Manila, in consultation with a visiting professor from UNAFEI, submitted to JICA a proposal on the
project “Revitalization of the VPA System in the Philippines”. Beginning in 2003, through the technical andfinancial assistance of UNAFEI, PPA revitalized its VPA system with due consideration of its past experience.  
Thereafter, UNAFEI through the facilities of JICA-Net, started a series of seminars involving Probation
Officers in the Philippines that were further developed in a project called The Holistic Approach in theTreatment and Rehabilitation of Offenders.  From then on, several trainings were conducted by UNAFEI
and JICA in support of the project which lasted until 2010, benefitting hundreds of participants in thePhilippines.  The establishment of the local and national level VPA organizations is of vital importance forthe effective promotion, utilization and sustainability of the VPA programme. The vision is to have anempowered VPA organization that will eventually be able to function independently and provide for theirown needs.

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VISITING EXPERTS’ PAPERS
This remarkable initiative has revitalized Volunteer Probation Assistance (VPA) in the Philippines whichsignifies the indispensable role of Japan, with the cooperation of UNAFEI and ACPF, in the development ofsustainable treatment of offenders in the Philippines.

III. THE CPPAPThe Crime Prevention Practitioners Association of the Philippines (CPPAP) is a private association
established to institutionalize the involvement of the private sector in crime prevention in the Philippines andto act as a conduit for professional, technical and logistical assistance from the Asia Crime Prevention
Foundation (ACPF) in Tokyo. It was created upon the invitation of the ACPF-Tokyo to Philippine alumni of
UNAFEI in order to establish an ACPF affiliate in the Philippines.
One of the programmes of the CPPAP is the management of the Philippines-Japan Halfway House(PJHH). This programme is jointly being managed by the CPPAP with the Department of Justice throughthe Bureau of Corrections and the Probation and Parole Administration.

IV. OTHER CPPAP PROJECTS
Aside from the management of the PJHH, the ACPF and CPPAP have branched out to other projects toinclude providing regular donations to the Correctional Institution for Women (CIW). Through their
benevolence, hygiene kits (toiletries), basic medicines and vitamins were provided to senior clients of the
CIW. The livelihood products of the CIW are also being sold during the month of March (women’s month) in
selected private and government offices.
In 2019, the ACPF and CPPAP intensified their partnership by branching out to different activities. On
March 22, 2019, twenty-six (26) members of ACPF visited the selected criminal justice agencies to further
assess the support they provide to persons deprived of liberty (PDL). It is noteworthy that most membersof the delegation were Volunteer Probation Officers (VPOs) in Japan who helped facilitate the rehabilitationof offenders as well as the acceptance of the offender by the community.  The group visited the Bureau ofCorrections, the National Police Commission, the Parole and Probation Administration and the Correctional
Institution for Women.
Currently, CPPAP and ACPF are conducting joint programme enhancement to heighten awareness incrime prevention, crime reporting and enhancing coordination with government authorities.  To kick off the
project, CPPAP and ACPF started the Crime Prevention Seminar for Japanese Businessmen in the Philippines
which was conducted in cooperation with the Japanese Chamber of Commerce and Industry of the Philippines(TJCCIP).

V. THE KYOTO CONGRESS
It is with great honour and pleasure to recount that I was able to participate in the On-Line Ancillary
Meeting during the 14th UN Criminal Justice (The Kyoto Congress) held in March 2021.  This was madepossible through the kind invitation of ACPF and UNAFEI wherein I reported “The Impact of International
Training Courses and Seminars in UNAFEI for the Promotion of Rule of Law in Participating Countries”.
The said Kyoto Congress adopted a “Declaration on Advancing Crime Prevention, Criminal Justice andthe Rule of Law: Towards the achievement of the 2030 Agenda for Sustainable Development.  Sections 10
and 12 of the said Declaration, acknowledge the significance of the cooperation of the NGOs to enhance
multidisciplinary efforts to prevent and combat crime, as well as through the provision of technical assistanceand capacity-building in crime prevention and criminal justice.

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Consistent with the 2021 Kyoto Declaration, the CPPAP and ACPF undertake to further enhance its
programme by providing and organizing trainings, seminars, workshops and conferences related to advancing
crime prevention, criminal justice and the rule of law through the cooperation and coordination between law
enforcement and other criminal justice institutions, and other governmental sectors, as well as to support
their work, by engaging in and fostering multi-stakeholder partnerships with the private sector, civil society,academia and the scientific community, and with other relevant stakeholders as appropriate.

VI. JICAOne of the biggest and major strategic development partners of the Philippines is the Japan International
Cooperation Agency (JICA) whose work in our country spans more than six decades of promoting economic
growth, supporting socio-economic development, recovery or economic stability and addressing international
challenges including achieving human security. The significance of the partnership is anchored on collaborationand cooperation under shared universal values including freedom, democracy, the rule of law, respect forbasic human rights, and a free and open economy.  In every challenge and issue faced by the Philippines,“JICA is always there to support and assist us”.  In fact, during the height of the Covid-19 pandemic, JICA
was one of the leading organizations that helped the Philippines through its comprehensive assistance andholistic approach to fight the pandemic.  JICA has also provided many opportunities to Filipinos to further
their learning and development through trainings or study opportunities in Japan. Its training programme
for young leaders benefited some 3,000 Filipinos over the years and, it is noteworthy to mention that JICA
has provided support and assistance that paved the way to the attendance of more 330 Filipino participants
to UNAFEI’s courses.  For this, my deepest and heartfelt gratitude to JICA.

VII. ACTUAL APPLICATION OF INTERNATIONAL COOPERATION
UNAFEI has not only served as a hub for learning, it has created a formidable network for the promotionof cooperation among members of the United Nations, especially among developing countries in the Asia andPacific region.
In the case of the Philippines and Japan, for instance, these countries have yet to have an extradition ormutual legal assistance treaty.  However, the absence of this formal agreement has not prevented us, thePhilippines, from lending our needed cooperation on matters that involve enforcement of the law in Japan.  
I, for one, can attest to several instances in the past where I, in my capacity as an official of the Departmentof Justice, rendered assistance to the Government of Japan in some investigations being conducted in Japan
but where witnesses and some forms of evidence were in the Philippines and must be secured in order tohelp in the investigation. Let me cite three (3) actual cross-border cases I personally handled:
A. Kosumi Yoshimi Case
This is a criminal case of a Japanese son who had his father killed for insurance purposes.  He conspiredwith three Filipinos in Japan.  The incident happened in Nagoya-shi, Japan.  The Japanese son together withthe three Filipinos helped each other to kill and burn his father and his house.   One Filipino fled to thePhilippines.  Japanese Prosecutor Hama of Nagoya requested me to interview and take the written statementof the Filipino who fled to the Philippines to clarify some discrepancies, which I did in Prosecutor Hama’spresence in the Philippines. At the conclusion of the trial proceedings in their cases, all three accused were
found guilty for the murder of the Japanese father and arson for burning his house.  The son was sentenced
to life imprisonment and the two Filipinos were sentenced for fifteen years with labour.
B. The Case of Chow On Park, alias Haruhiko Arai
This is a case of a Japanese man who shot and killed another Japanese man. His cohort placed the corpse
at the back of a vehicle and drove it to a parking lot in Osaka and left it there.  For having done that, he waspaid 30 million yen. He instructed his Filipina wife to bring the money to the Philippines.  She kept the money
inside safe deposit boxes in two Philippine banks.  The Chief Prosecutor of Osaka requested assistance forthe recovery of the money and dispatched two Japanese prosecutors to the Philippines. I sought the assistance12

VISITING EXPERTS’ PAPERS
of our law enforcement to locate the Filipina wife and we succeeded.  I convinced the wife to return themoney, and I personally turned over the money to the Philippine Department of Foreign Affairs to be sent
back to Japan.  The money was finally used as evidence in connection with the pending criminal proceedings
in Osaka, and Haruhiko Arai was eventually convicted and sentenced to suffer imprisonment for the crimeof Abandonment of a Corpse that he had committed.
C. The Case of Singapore National Eugene Beng Hua Lim, alias Alfred Lim
On 30 June 2008, Marilyn Bagsit and Marilou Capistrano escaped from Eugene Beng Hua Lim a.k.a Alfred
Lim agency office after enduring abuse and maltreatment.  They asked the Philippine Embassy in Kuala
Lumpur for assistance, and they were referred to the Department of Justice.  Being the Chairman of the
Human Trafficking Task Force, their case was assigned to me by our Secretary of Justice.  I immediately
contacted my good friend, whom I met in one of UNAFEI’s training courses, then the Head of the Royal
Malaysian Police, Police Inspector General Tan Sri Dato Musa Bin Hassan and also an officer of ACPF
Malaysia.  He acceded to my request for legal assistance, and I brought the two victims of human trafficking
to his office in Kuala Lumpur.  After hearing the testimonies of the victims, he immediately ordered thearrest of the said suspect.  Malaysia’s Attorney General’s Chambers filed a criminal case against Lim in July2009.
I personally brought the two victims to Kuala Lumpur during scheduled hearings.  The High Court in
Kuala Lumpur convicted Eugene Beng Hua Lim a.k.a Alfred Lim on two counts of human trafficking andsentenced him to 3 years of imprisonment for each count.   I have also rescued three victims of humantrafficking in Labuan, Malaysia, and one victim in Sabah through the cooperation of the Royal Malaysian
Police Officials.
Ladies and Gentlemen, UNAFEI training courses and seminars that involve the participation of justiceworkers of diverse backgrounds, cultures and practices, are not only venues of discourse, learning, informationexchange and international cooperation.   They are in themselves powerful and effective occasions that
promote and strengthen the rule of law not only in Asia but the world over.   They not only capacitate
participants in their distinct functions in the justice system but also inspire and motivate them to become
better, if not the best, in their fields.  The challenging times ahead in terms of crime prevention and solution
demand that international cooperation and exchanges among countries, governments and civil or nongovernmental organizations are sustained.  For this reason alone, UNAFEI, with the support of ACPF, hasbeen as worthwhile an undertaking as it is worth keeping.

VIII. CLOSING STATEMENT
In closing, let me assure you that CPPAP and your friends from the Philippines wish to convey thewarmest felicitations and greetings for ACPF’s and UNAFEI’s anniversary celebrations. You will continue
to be our avowed and treasured friends, and we would like to think that this celebration pays homage to thepromotion of peace, friendship and good-neighbourhood. This occasion makes us realize that our areas ofcooperation are beyond that of trade, commerce and economics. More importantly, we are exploring a longand binding partnership for the promotion of more humane treatment of offenders in both our beloved
countries – Japan and the Philippines.
We are particularly appreciative of the continued support extended by the ACPF, particularly ACPF
Nagoya, for the operation of the Philippines-Japan Halfway House and all the other projects for the
rehabilitation of offenders. In all sincerity, we in the Philippines are so happy that the Japanese people havecontributed towards enhancing the quality of life of our less fortunate members of society.   We want toassure you that your effort has provided us with so much inspiration. We hope to see more of your kind in
this world and pray that warm-hearted people like you have long and fruitful lives.
Lastly, collaboration among nations requires treaties and/or bilateral agreements such as extradition andmutual legal assistance.   For those of you who are familiar with foreign relations, you know that theseprocesses are costly and tedious.  The institutions such as UNAFEI and JICA, and ACPF, a UN NGO in
general consultative status with ECOSOC, are the silent facilitators for forging sustainable relationships
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between nations.   They are the cornerstones of partnership between countries, a bridge to cross-borderrelations, and a seed in which international cooperation blossoms.
For this, please accept our sincerest appreciation and thank you for inviting me to celebrate with you.
This occasion will remain in my heart along with the treasures of my memories.   Let me reiterate our
gratitude to ACPF Chairman Mikinao Kitada for showing interest and concern to CPPAP in particular andto the Philippines in general.

14PART TWORESOURCE MATERIAL SERIES
No. 115Work Product of the 179th
International Training Course

UNAFEIVISITING EXPERTS’ PAPERSREHABILITATING YOUNG ADULT OFFENDERS
Garner Clancey*

I. INTRODUCTION
Youth justice systems in various jurisdictions around the world cater for children and young people up
to the age of 18 years. While there are marked differences in the minimum age of criminal responsibility
across jurisdictions ranging from seven to 14 years of age (or older in rare circumstances) in most jurisdictions(Cipriani 2009), there are greater similarities with regards to the upper age limit of youth justice systems.
Eighteen years is generally the standard upper age for youth justice systems (Pease and Tseloni 1996),
resulting in a delineation between youth justice and adult criminal justice systems.
There is no magical maturation that takes place at this age (Stone 2019). A young person on turning 18
years does not magically acquire greater insight, wisdom and restraint (Loeber and Farrington 2012). They
are not blessed with any greater ability to plan or to understand the consequences of their actions.
Consequently, this division between youth justice and adult criminal justice systems has been increasingly
criticized and the cliff-edge between the two systems should be considered a slope (Stone 2019).
Developments in neuroscience have been especially relevant to these criticisms. Developments inneuroscience, termed the “neuroscientific turn” (Brewster 2020) suggest that brain development does notfinish until mid-twenties, which suggests that the protections afforded to children and young people in youth
justice systems might usefully be applied to young adults. Capacity for insight, understanding of consequencesof behaviour and ability to plan, among other skills, develop over time as brain development and maturity
occurs.
This paper will explore some of the key features of youth justice systems, noting that they are far fromhomogenous, and how many aspects of these youth justice systems might be extended to young adults. A
small number of examples where young adult offenders are treated in broadly similar ways to young
offenders will be considered here. The paper will then conclude with consideration of some of the challenges
facing jurisdictions who would seek to apply some of the approaches and methods used in youth justicesystems to those adult offenders.

II. COMMON KEY FEATURES OF YOUTH JUSTICE SYSTEMS
Numerous protections and provisions operate in youth justice systems in recognition of the greater
vulnerabilities of children and young people (Richards 2011). For example, a minimum age of criminal
responsibility is set in recognition that children below a particular age, determined in each jurisdiction, do
not have the capacity to know that their behaviour is unlawful (Cipriani 2009). This means that young
children cannot be held criminally responsible. Many youth justice systems have legislative provisions that
protect the identity of the children and young people who enter their youth justice systems so that any
stigma associated with their offending does not haunt them into their futures (Richards 2011). Many
jurisdictions have legislative provisions that allow for offences committed as children or young people to becleared at the time they turn 18 years of age, if not completely expunged from their criminal records(although some jurisdictions have seen attacks and dismantling of these provisions over time (Kurlychek andShah 2018)). Many jurisdictions will have legislative guidance to protect children and young people in theirdealings with police, including needing an adult to be present at the time of police interview and for children* Associate Professor of Criminology, University of Sydney Law School, Australia.

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and young people to be held separately to adults in police cells (Council of Europe 2010). Legislative andpolicy directions establishing diversionary measures to keep children and young people out of the formal
youth justice system have a long history in many jurisdictions (Scharf 1978) and have a general pattern ofevidence that is positive (Wilson, Brennan and Olaghere 2018). Separate specialist children’s courts operate
to deal with matters involving children and young people (Cashmore 2013). This serves to reduce thepotential for contamination through children and young people mixing with adult defendants. Legislation
guiding the operation of youth justice systems routinely emphasizes rehabilitation, whereas adult sentencing
provisions will invariably emphasize individual and general deterrence, among other sentencing principles(Stone 2019). Separate youth detention facilities ensure that children and young people remanded in or
sentenced to custody do not interact with adult prisoners or inmates. This again serves to reduce risks ofcontamination (Richards 2011), as well as protecting vulnerable children and young people from violence andintimidation which might occur if co-housed with older inmates. These and other provisions and protections
are hallmarks of youth justice systems which recognize the vulnerabilities of children and young people andtheir reduced culpability for their behaviour.
Many of these provisions are broadly consistent with the various international conventions and guidelines
for children and young people in conflict with the law, such as the United Nations Convention on the Rightsof the Child, the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (TheBeijing Rules), and the United Nations Rules for the Protection of Juveniles Deprived of their Liberty.

III. “NEUROSCIENTIFIC TURN”
Significant developments in neuroscience in recent years have shed light on brain development, challenging
previous assumptions about the period over which brain development occurs. There is now general agreementthat brain development largely slows in the mid-twenties.
Prior to this time, there are a range of behaviours that might be impacted through the development of
the brain, particularly the prefrontal cortex. Logical reasoning, abstract reasoning, and intellectual abilities
develop through adolescence and late adolescence. Their development of logical and abstract reasoning
potentially places young people as more vulnerable to peer pressure, less able to anticipate consequences orjudge risks, and they have less life experience to draw on when making critical decisions (Schmidt, Rap andLiefaard 2020).
Moreover,Psychological functions that are relevant in the context of criminal culpability and responsibility, such as
inhibition (constraining impulses) and the suppression of interferences (risk-taking behaviour), are notfully developed until after the 20th year of life … The higher executive functions of the brain, such asplanning, verbal memory and impulse control, are only fully developed around the age of 25 (Schmidt, Rap
and Liefaard 2020: 175).
This neuroscientific evidence helps, at least partially, explain the age-crime curve, which suggests elevatedlevels of offending from mid-teens to mid-twenties (Farrington 1996). This age-crime curve has a long history,
with the first recorded example published in 1831 (Matthews and Minton 2018), and widespread replication,
meaning that it goes beyond a single jurisdiction or socio-cultural context, although recent youth crime
declines in various countries has prompted some to question the static nature of the age-crime curve(Matthews and Minton 2018).
Nonetheless, on the basis of the “neuroscientific turn”, there have been calls to expand the types ofprovisions common to youth justice systems to young adult offenders.

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IV. INITIATIVES FOR YOUNG ADULT OFFENDERSWith the growing recognition that young adults are also continuing to experience brain development,
there have been calls to variously extend some of these common features of the youth justice system toyoung adults. Those in favour of doing so not only cite developments in neuroscience to support these claims,
but also note changes in social dynamics that now see many young adults, at least in some parts of the world,
experiencing a protracted adolescence, at least in the sense of remaining in education longer and staying in
the family home until they are older (Arnett 2004). This, some argue, highlights a reduced taking of
responsibilities that in prior generations would have been acquired much earlier in life. This, it might beargued, is evidence of the need to extend some of the protections from youth justice systems to those in theearly twenties.
Some jurisdictions have adopted or are experimenting with initiatives reflecting these concerns. In
Australia, there are a number of relevant examples of policies and systems established to respond to theneeds of young adults. In the Australian state of Victoria, there has been a “dual track” system for many
decades (Victorian Sentencing Advisory Council 2019). This system allows young adults (aged 18-21 years)
to serve their custodial sentence in a Youth Justice Centre as opposed to an adult prison if the young adultis thought to be particularly impressionable, lacking in maturity, or thought to be vulnerable to undesirable
influences in an adult prison. This system is thought to recognize the continuing development of the young
adult’s brain and that young adults also generally have good prospects of rehabilitation. Thus, the system
also recognizes that adult prisons may not be the best at fostering such development and rehabilitation.
However, if a young adult does continue to offend and they are further incarcerated, they might be heldin Port Phillip Prison in Victoria, which has a specialist youth unit (“Penhyn”) for young adult inmates aged
18-25 years of age who are first time offenders with no criminal record (Victorian Sentencing Advisory
Council 2019). Similar prison programmes operate in other Australian jurisdictions, in an effort to separate
more vulnerable inmates from the general prison population.
Australian jurisdictions also have various forms of diversion and specialist courts (for example, drug
courts and Aboriginal-specific courts, as well as specific treatment initiatives connected to courts for family
violence and gambling) for those in possession of illicit drugs or whose offending is related to their drug use.
Many of these are not specifically designed for young adults, but given the well established age-crime curve,
see a significant proportion of participants being young adults. There have been calls from some Australianscholars to extend diversion interventions such as police cautions to adults (Thompson et al 2014), again witha focus on young adults. Similar arguments are raised as have been advocated by those in the youth justicearea promoting diversion. Less formal interventions have been shown to be effective at diverting people
away from formal criminal justice interventions and are cost-effective when compared with the costs ofrunning court systems (Wang and Weatherburn 2018).
Beyond Australia, various jurisdictions have embraced similar provisions. The Netherlands has famously
extended aspects of the youth justice system to capture young adults (up to the age of 23 years). Other
European countries, such as Germany, have also adopted broadly similar provisions (Farrington, Loeber andHowell 2012). These arrangements provide greater flexibility to relevant courts when sentencing a young
adult. This can mean that young adults are sentenced to serve a period of a custodial sentence in a youth
facility rather than an adult prison (Schmidt, Rap and Liefaard 2020).
In addition to these somewhat system-level structures that treat young adults as still maturing anddeveloping rather than completely matured individuals, there are a variety of correctional interventions thatvie for attention. Some, such as the Risk-Needs-Responsivity (RNR) model, have amassed a body of positive
empirical analysis, while others, such as the Good Lives Model, continues to be promoted for its more holistic
framing of people in conflict with the law, but perhaps has less clear evidence of success (Lösel 2012). Eachof these two major approaches are described briefly here.
The RNR model employs an offence-focused approach to rehabilitation activities. The RNR model
stipulates that there are four criminogenic needs that have the greatest correlation with offending behaviour(the Big Four) – antisocial personality pattern, pro-criminal attitudes, social supports for crime and a history
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of antisocial behaviour. Additionally, there are another four peripheral needs that contribute to offending
behaviour – problematic family relationships and circumstances, problems at school or work, lack of prosocial leisure activities and substance abuse (Bonta and Andrews 2007).
Somewhat in contrast, the “Good Lives Model” emphasizes the importance of a holistic and therapeutic
approach to rehabilitation (Ward & Maruna 2007). It focuses on “human goods”, such as agency, quality
relationships and a purpose-filled life, to reduce the risk of reoffending, therefore moving beyond a risk focus.
This approach appeals to some criminal justice practitioners because it does not just frame young adultoffenders as offenders but rather as people with wants, needs, skills and wishes.
Other approaches to young adult offender rehabilitation exist and individual jurisdictions will have theirown approaches to rehabilitating young adult and other offenders. Models of this kind often arise fromparticular legal and cultural contexts and attempts to apply them need to consider these and related issues.

V. CHALLENGES OF EXTENDING PROVISIONS OF YOUTH JUSTICE SYSTEMS TO
YOUNG ADULTS
While all of this makes good sense, I would argue that there are a number of challenges associated withmaking this shift toward less punitive interventions for young adult offenders. The first relates to the current
state of youth justice systems in various jurisdictions. Many jurisdictions have youth justice systems thatstruggle to achieve the standards and norms established in various international conventions and are areas
requiring substantial reform if they are to meet these standards (Reddy and Redmond 2018). This makes it
difficult to contemplate expanding the system to capture young adult offenders. This is especially the casewhen many jurisdictions have, over time, seen a hardening of the distinction between youth justice and adultcriminal justice systems. In the spirit of “law and order” and “tough on crime” policy (Garland 2000), somejurisdictions have passed laws to trigger transfers from youth justice to adult custody at 18 years of age,rather than keeping young adults in youth custodial facilities as might have been the case historically. In theAustralian state of New South Wales, reports over many years highlighted the significant number of over 18
year-olds in youth detention. Legislative amendments now allow for transfer for more young people to adultcustodial facilities when they turn 18. Thus, the movement to extend the reach and/or principles of youth
justice systems to capture young adults is working against the recent tide of legislative and policy reform insome jurisdictions.
Secondly, youth justice systems are generally considerably more expensive for governments than adultsystems (NSW Auditor General 2017). Extending the reach of a youth justice system potentially increases
the costs for governments in administering the various youth justice and adult correctional systems. While
there might be grounds to argue that providing greater opportunities for young adults to stay in the youth
justice system ultimately saves money by delivering better reoffending outcomes and being potentially lesstraumatic, there will be challenges to mounting arguments for this to occur if it results in initial increased
expenditure. Invariably, governments and treasury departments have finite resources and their willingness
to extend youth justice-like provisions to young adults might be tempered by any additional costs.
Thirdly, youth justice custodial facilities grapple with managing the very different developmental needsof children and young people and struggle to separate them according to developmental need, offending
history, status (that is remand versus sentenced to custody), gender and the like. These issues are likely to
be exacerbated if older detainees are housed in custodial facilities with quite young children.
Moreover, various inquiries have shown that children and young people in custody have often experienced
forms of assault and sexual assault (Royal Commission into Institutional Responses to Child Sexual Abuse
2017). Child safe guidelines and frameworks have been developed to protect children and young people incustody. Extending the age range of those held in the same facility will invariably create additional
management and security challenges that will need to be carefully managed.
With these challenges in mind, I would argue that there is considerable merit to working to improve
prevention and diversion measures to keep young adults out of the criminal justice system for as long as
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possible. Noting that the age-crime curve suggests a significant decline in offending of those nearing 24 or 25
years, there is likely to be considerable human and financial benefit for prolonging their entry into thecriminal justice system. This means working to extend existing diversionary measures, such as cautioning
schemes, conferencing programmes, treatment referrals and the like to cover young adults. Simultaneously
investing in prevention efforts and providing strong post-release support services for young people leaving
custody will help in reducing the contact young adults have with the criminal justice system. Prioritizing
employment and housing support in any post-release arrangements is important and ever more so withpressure on limited housing stock in some jurisdictions and poor employment outcomes for ex-detainees orinmates (Mills, Latimer, Gordon, Groot and Milne 2021).
References
Arnett, J. (2004) Emerging Adulthood: The winding road from the late teens through the twenties, Oxford
University Press, New York.
Bonta, J., Andrews, D. A. (2007) Risk-need-responsivity model for offender assessment and rehabilitation,
Public Safety Canada: Ottawa.
Brewster, D. (2020) ‘Not wired up? The Neuroscientific Turn in Youth to Adult (Y2A) Transition Policy’,
Youth Justice, Vol. 20, No. 3: 215-234.
Cashmore, J. (2013) ‘Juvenile Justice: Australian Court Responses Situated in the International Context’, in
Sheehan, R. and Borowski, A. (eds) Australia’s Children’s Courts Today and Tomorrow, Springer,
Dordrecht.
Cipriani, D. (2009) Children’s Rights and the Minimum Age of Criminal Responsibility, Routledge, London.
Council of Europe (2010) Guidelines of the Committee of Members of the Council of Europe on child-friendly
justice’, Council of Europe Publishing - https://rm.coe.int/16804b2cf3
Farrington, D. (1996) Understanding and Preventing Youth Crime, Joseph Rowntree Foundation, York.
Farrington, D., Loeber, R. and Howell, J. (2012) ‘Young Adult Offenders: The Need for More Effective
Legislative Options and Justice Processing’, Criminology and Public Policy, Vol. 11, No. 4: 729-750.
Garland, D. (2000) ‘The Culture of High Crime Societies: Some Preconditions of Recent Law and Order
Policies’, British Journal of Criminology, Vol. 40, No. 3: 347-375.
Kurlychek, M. and Shah, R. (2018) ‘The Hidden Consequences of Visible Juvenile Records’, in Huebner, B. and
Frost, N. (eds) Handbook on the Consequences of Sentencing and Punishment Decisions, Routledge,
Boca Raton.
Loeber, R. and Farrington, D. (2012) ‘Introduction’ in Loeber, R, and Farrington, D. (eds) From Juvenile
Delinquency to Adult Crime: Criminal Careers, Justice Policy and Prevention, Oxford University
Press, New York.
Lösel, F. (2012) ‘What works in correctional treatment and rehabilitation for young adults?’, in Lösel, F.,
Bottoms, A. and Farrington, D (eds) Young Adult Offenders: Lost in Transition?, Routledge, London.
Matthews, B. and Minton, J. (2018) ‘Rethinking one of criminology’s ‘brute facts’: The age-crime curve and thecrime drop in Scotland’, European Journal of Criminology, Vol. 15, No. 3: 296-320.
Mills, A., Latimer, C., Gordon, G., Groot, S. and Milne, B. (2021) ‘More than a roof? A critical review of postprison housing provision in Aotearora/New Zealand’, New Zealand Sociology, Vol. 36, No. 1: 1-24.
NSW Auditor General. (2017). Report on Justice 2017. The NSW Auditor General’s Report – Financial Audit.
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Pease, K. and Tseloni, A. (1996) ‘Juvenile-Adult Differences in Criminal Justice: Evidence from the United
Nations Crime Survey’, The Howard Journal, Vol. 33, No. 1: 40-60.
Reddy, J. and Redmond, S. (2018) Improving the Measurement of Effectiveness in the Irish Youth Justice
System: International Review of Youth Justice Systems, Research Evidence into Policy, Programmes
and Practice Project, University of Limerick.
Richards, K. (2011) ‘What makes juvenile offenders different from adult offenders?’, Trends and Issues in
Crime and Criminal Justice, No. 409, Australian Institute of Criminology, Canberra.
Royal Commission into Institutional Responses to Child Sexual Abuse 2017, Final report recommendations,
https://www.childabuseroyalcommission.gov.au
Scharf, P. (1978) ‘Towards a Philosophy for the Diversion of Juvenile Offenders’, The Journal of Juvenile andFamily Court Matters, Vol. 29, No. 1: 13-20.
Schmidt, E., Rap, S. and Liefaard, T. (2020) ‘Young Adults in the Justice System: The Interplay between
Scientific Insights, Legal Reform and Implementation in Practice in the Netherlands’, Youth Justice,Vol. 21, No. 2: 172-191.
Stone, N. (2019) ‘The View From the Cliff Edge: Patrolling the Juvenile-Adult Age Boundary’, Youth Justice,Vol. 19, No. 2: 158-169.
Thompson, C., Stewart, A., Allard, T., Chrzanowski, A., Luker, C. and Sveticic, J. (2014) ‘Examining adult-onset
offending: A case for adult cautioning’, Trends and Issues in Crime and Criminal Justice, No. 488,
Australian Institute of Criminology, Canberra.
Victorian Sentencing Advisory Council (2019) Rethinking Sentencing for Young Adult Offenders, Victorian
Sentencing Advisory Council, Melbourne - https://www.sentencingcouncil.vic.gov.au/sites/default/
files/2019-11/Rethinking_Sentencing_for_Young_Adult_Offenders.pdf
Wang, J. and Weatherburn, D. (2018) ‘Are police cautions a soft option? Reoffending among juveniles cautionedor referred to court’, Australian and New Zealand Journal of Criminology, Vol. 52, No. 3: 334-347.
Ward, T. and Maruna, S. (2007) Rehabilitation: Beyond the risk paradigm, Routledge, London.
Wilson, D., Brennan, I. and Olaghere, A. (2018) ‘Police-initiated diversion for youth to prevent future delinquent
behaviour: a systematic review’, Campbell Collaboration Systematic Review.

22

VIOLENCE AGAINST CHILDREN AND JUSTICE FOR CHILDREN IN THE
CONTEXT OF NATIONAL SECURITY AND COUNTER-TERRORISM
Hannah Tiefengraber*

I. INTRODUCTION: “VIOLENCE AGAINST CHILDREN” AS A FRAMEWORK FOR
ACTION
When working with children1 in contact with the justice system as victims, witnesses or alleged offenders,
it can be observed that too often the obstacles in the children’s journeys can be traced back to episodes ofviolence, neglect and ill treatment. Indeed, exposure to violence can hamper personal, intellectual and social
development of a child, and studies have shown that long-term exposure to violence can put children at riskof becoming involved in crime and violence in the future.2 It is therefore important to recognize thatconsequences of violence against children cause considerable harm not only to the child but also result inhigh costs for society as a whole. Globally, an estimated one billion children – or one out of two children
worldwide – suffer some form of violence3 each year.4 The fact that many of those children may come into
contact with the justice system as alleged offenders in the future provides a clear image of how sectoral
approaches tend to fail to respond to the real challenges faced by these children. Children’s right to protection
from violence5 is based on the knowledge that children present additional vulnerabilities as they are stilldeveloping physiologically, socially, emotionally, neurologically and cognitively. They differ from adults intheir social and emotional maturity, and their ability to make judgments and decisions, and this means they
are unlikely to understand the impact of their actions or to comprehend criminal proceedings.6 This
necessitates the special protections and treatment children are entitled to under international law.
The most recent child rights instrument approved by the United Nations General Assembly in 2014, the“United Nations Model Strategies and Practical Measures on the Elimination of Violence against Children in
the Field of Crime Prevention and Criminal Justice”7 (“Model Strategies”) were developed to help States to*
Crime Prevention and Criminal Justice Officer, Crime Prevention and Criminal Justice Section, Division for Treaty Affairs,
United Nations Office on Drugs and Crime (UNODC).
1
Refers to every human being below the age of eighteen years as per Article 1, Convention on the Rights of the Child, (1989).
2
Maxfield and Spatz Widom, “The Cycle of Violence: Revisited 6 years later” Paediatrics & Adolescent Medicine 150, 4 (1996),
SOS Children Villages International, The Right to Protection: Ending Violence Against Children (2017), p. 11. PsychiatricTimes, “From Victim to Aggressor” Psychiatric Times 24(7) (1 June 2007); Lam et al., “Will Victims Become Aggressors orVice Versa? A Cross-Lagged Analysis of School Aggression” Journal of Abnormal Child Psychology (2017). WHO Regional
Office for Europe, The Cycles of Violence: The Relationship Between Childhood Maltreatment and The Risk of Later
Becoming a Victim or Perpetrator of Violence (EUR/07/50631214) (2007). Gómez, “Testing the Cycle of Violence Hypothesis:
Child Abuse and Adolescent Dating Violence as Predictors of Intimate Partner Violence in Young Adulthood” Youth &Society 43(1) (2011).
3
When referring to “violence” against children, it is important to stress that this is not limited to physical violence but that
the Convention on the Rights of the Child adopts a broader definition and refer to “all forms of physical or mental violence,
injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse”, see Convention on the
Rights of the Child, (1989), Article 19.
4
See WHO, Global status report on preventing violence against children 2020, (2020).
5
The Convention on the Rights of the Child foresees an obligation for Member States to “take all appropriate legislative,administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or
abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse”. See Convention on the Rights of
the Child, (1989), Article 19.
6
The Committee on the Rights of the Child has referred to documented evidence in the fields of child development andneuroscience that indicates that “maturity and the capacity for abstract reasoning is still evolving in children aged 12 to
13 years due to the fact that their frontal cortex is still developing”. See Committee on the Rights of the Child, Generalcomment No. 24 (2019) on children’s rights in the child justice system, CRC/C/GC/24, (18 September 2019), para 22.
7
United Nations Model Strategies and Practical Measures on Violence against Children, A/RES/69/194 (18 December 2014).

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address the need for integrated violence prevention and child protection strategies. They acknowledge thecomplementary roles of the justice system on the one hand, and the child protection, social welfare, healthand education sectors, on the other, in working together to create a protective environment and in preventing
and responding to violence against children.8 Using “violence against children” as a framework for action
when it comes to the treatment of children recruited and exploited by criminal and armed groups, including
terrorist groups,  by the justice system is particularly relevant as these children may have been exposed tohigh levels of violence and should be treated and considered primarily as victims.

II. THE PHENOMENON OF CHILD RECRUITMENT AND EXPLOITATION BY
CRIMINAL AND ARMED GROUPS, INCLUDING TERRORIST GROUPS
The recruitment and exploitation of children by criminal and armed groups, including terrorist groups, isa complex phenomenon that has been evolving considerably in the past years while new risks and challenges
for children emerge. The Covid-19 pandemic has increased children’s vulnerabilities in the context of newmeans of recruitment employed by these groups, such as through the use of online communication andgrooming, as misinformation is amplified through social media.9 Research indicates that children who havebeen recruited and exploited by criminal and armed groups, including terrorist groups, are subjected to
extreme levels of violence, including forms of cruel, inhuman and degrading treatment.10 Girls are particularly
vulnerable to the threat and reality of sexual and gender-based violence.11 Exposure to this level of violence
has grave implications for children’s development and well-being, as well as for the development of thecommunities in which they live. It can result in high risk of stigmatization and marginalization of children
involved with such groups and generates challenging rehabilitation and reintegration needs.12
Children may become recruited or exploited for a wide variety of reasons and there are different types
of factors that need to be taken into account. Negative circumstances and elements affecting the child that
may be linked to the lack of socio-economic opportunities; marginalization and discrimination; poor governanceand violations of human rights and prolonged and unresolved conflicts. Other factors or incentives that “pull”
children towards the groups may include: a child’s individual background and motivations; sense of collective
grievances and victimization; influence of distorted and misused beliefs, political ideologies and ethnic andcultural differences; material inducements; and significant influence of leadership, social and family networks.13
Most importantly, it should be highlighted that these groups deliberately choose to exploit children’svulnerabilities and recruit them as they may present particular strategic advantages to the groups, as wellas “propaganda value”.14 Some children are recruited using brutal and violent methods such as kidnapping.
Others may join due to material inducements because they have no other choice to survive, for protection,or because they feel a responsibility to defend their families and communities.15 Peers and relatives may also
have a strong influence on children’s behaviour by serving as role models, and research shows that children
are particularly susceptible to peer influence, including pressure to engage in antisocial behaviours.16

8

It is important to note that there is currently no universally accepted, comprehensive definition of “terrorism” or “terroristgroup”.
9
UNICRI, Stop the Virus of Disinformation, the risk of malicious use of social media during COVID-19 and the technology
options to fight it, (November 2020), p. iii.
10
UNODC, Handbook on Children Recruited and Exploited by Terrorist and Violent Extremist Groups: The Role of theJustice Section, (2017) p. 2.
11
Ibid., p. 15. See also : O'Neil, Siobhan and Van Broeckhoven, Kato, Cradled by Conflict: Child Involvement with Armed
Groups in Contemporary Conflict, New York: United Nations University, (2018), p. 72-73.
12
See also: O'Neil, Siobhan and Van Broeckhoven, Kato, Cradled by Conflict: Child Involvement with Armed Groups inContemporary Conflict, (New York: United Nations University, 2018), p. 199-200; 255.
13
UNODC, Handbook on Children Recruited and Exploited by Terrorist and Violent Extremist Groups: The Role of theJustice Section, (2017), p. 30-31.
14
See also: O'Neil, Siobhan and Van Broeckhoven, Kato, Cradled by Conflict: Child Involvement with Armed Groups inContemporary Conflict, New York: United Nations University, (2018), p. 45-46.
15
See UNODC, Prevention of Child Recruitment and Exploitation by Terrorist and Violent Extremist Groups: The Role of
the Justice System: A Training Manual, (2019), p. 22.
16
Ibid.

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VISITING EXPERTS’ PAPERS
Today, children recruited and exploited by criminal and armed groups, including terrorist groups, comeinto contact with the justice system and are being arrested, detained and prosecuted under counter-terrorism
legislation in increasing numbers globally.17 Frequently, punitive approaches are given prevalence overrestorative justice approaches which may expose these children to further risks of violence.18 A rights-based
approach anchored in international law should be applied to make sure that all children, regardless of theirpotential status as alleged offenders and the gravity of the alleged offence, receive the care and protection
they need and to ensure that their status first and foremost as victims of violations of international law isrecognized.

III. JUSTICE FOR CHILDREN IN THE CONTEXT OF NATIONAL SECURITY AND
COUNTER-TERRORISM: THE INTERNATIONAL LEGAL FRAMEWORK
Identifying the applicable international legal framework for children recruited and exploited by criminal
and armed groups, including terrorist groups, can be difficult, especially in the national security and counterterrorism context. There is a need for adopting a holistic approach to prevent and respond to violenceagainst children perpetrated by these groups, recognizing the interconnection between different legal
regimes, as international law offers responses that are valid and can lead to effectiveness.
In international humanitarian law one can find the basis of the prohibition of child recruitment and use in
hostilities for children, as well as the right of special protection of children affected by conflict.19 This
prohibition of the use of children is later reprised and broadened in the Rome Statute,20 whereas international
human rights law provides the broadest prohibition of child recruitment.21 The universal legal framework on
counter-terrorism also promotes the prohibition of recruitment, and is increasingly recognizing thevictimization of children.22 Finally, United Nations standards and norms may also provide guidance on how
to prevent and respond to this serious form of violence in the field of crime prevention and criminal justice.

IV. MEASURES TO PREVENT AND COUNTER CHILD RECRUITMENT AND
EXPLOITATION IN THE CONTEXT OF NATIONAL SECURITY AND COUNTERTERRORISM, ANCHORED IN INTERNATIONAL LAW
A. Prohibition of Child Recruitment and Use in Hostilities
Prohibition and criminalization of child recruitment and exploitation are crucial and can also be seen asmeans to prevent this serious form of violence against children, as it will trigger key obligations of the State17

See United Nations Global Study on Children Deprived of Liberty (2019), p. 640.
Committee on the Rights of the Child, General comment No. 24 (2019) on children’s rights in the child justice system, CRC/
C/GC/24, (18 September 2019), para 99.
19
Article 77.2 of the First Additional Protocol to the Geneva Conventions prohibits the recruitment of children under theage of 15 years by the armed forces of the State and their participation in hostilities in the context of an international armed
conflict, while Article 4.3 of the Second Additional Protocol explicitly prohibits the recruitment of children under the age of
15 years by non-State armed groups in the context of a non-international armed conflict.
20
Rome Statute of the International Criminal Court (2002), Article 8.2 (b) (xxvi) concerning conscription or enlistment into thearmed forces; and Article 8.2 (e) (vii) concerning conscription or enlistment into armed forces or armed groups.
21
Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, (25 May
2000), article 4. See also: Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children,
supplementing the United Nations Convention against Transnational Organized Crime (“Palermo Protocol”), (15 November
2000).
22
Universal conventions and protocols applicable to the fight against terrorism such as the International Convention for the
Suppression of Terrorist Bombings, (1997), do not specifically address the issue of child recruitment and use by terroristgroups. However, they do specify that the obligation to criminalize and prosecute acts of terrorism applies not only to theimmediate perpetrators of such offences, but also to those who instruct others to commit the alleged terrorist act. Several
resolutions adopted by the UN General Assembly as well as the Security Council condemn child recruitment, see notably
Security Council Resolution 1373(2001); Security Council Resolution 2178(2014), and General Assembly Resolution 70/291(2016).
18

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RESOURCE MATERIAL SERIES No. 115
in relation to ensuring children’s protection through the provision of services,23 and it allows to shift theblame from child victims to those who recruit and exploit children to hold them accountable.
Specific provisions of international humanitarian law prohibit the recruitment and use of children in
hostilities by the armed forces of a State and by non-State armed groups in the context of armed conflict forchildren under the age of 15 years.24 The prohibition of the recruitment for this age category can also befound in international human rights law.25 At the same time, within the framework of international criminal
law, the Statute of the International Criminal Court establishes as a war crime the conscription or enlistmentof children under the age of 15 years into armed forces or armed groups, as well as their use to participate
actively in hostilities.26
These provisions are complemented to protect children between the age of 15 and 18 years, whose
recruitment is prohibited by the Optional Protocol to the Convention on the Rights of the Child on the
involvement of children in armed conflict.27 In addition, the Worst Forms of Child Labour Convention includes
the forced or compulsory recruitment of children for use in armed conflict in the list of “worst forms of childlabour”. The Convention also specifies that the worst forms of child labour include “work which, by its natureor the conditions in which it is carried out, is likely to harm the health, safety or morals of children”,28 which
may include participation in hostilities. Under this Convention, States Parties are obliged to take immediate
and effective measures to ensure the prohibition and elimination of these worst forms of child labour (including
criminalization)29 as a matter of urgency.
B. Children Recruited and Exploited by Criminal and Armed Groups, Including Terrorist Groups,
Should Be Considered and Treated as Primarily Victims
To understand why, according to international law, child victims of recruitment and exploitation byterrorist and violent extremist groups should always be considered and treated primarily as victims and theimplications of this principle, it is important to recognize that no child recruitment can be regarded as truly
voluntary.30 The perception of child recruitment and exploitation as a voluntary act places the blame on thechild and can have far-reaching consequences. It leads to a focus of public action against the child and notagainst the groups and individuals that are recruiting. Moreover, it can also lead to stigmatization and thus
reduce the number of complaints to authorities against acts of recruitment, for fear of reprisals or sanctions.31
It is therefore important to clarify the misconception of “voluntary recruitment” and recognize that there isalso an inherent power imbalance between these groups, which deliberately target children for recruitment,
and a child who is particularly vulnerable to these recruitment tactics.32 Indeed, the United Nations Special
Representative of the Secretary-General for Children and Armed Conflict stated that recruitment processes
are often characterized by elements of both coercion and voluntary recruitment, making such distinctions
extremely difficult.33 This has also been recognized by the International Criminal Court in the Lubanga Dyilo
23
See UNODC, Prevention of Child Recruitment and Exploitation by Terrorist and Violent Extremist Groups: The Role of
the Justice System: A Training Manual, (2019), p. 65.
24
Article 77.2 of the First Additional Protocol to the Geneva Conventions which prohibits the recruitment of children under
the age of 15 years by the armed forces of the State and their participation in hostilities in the context of an internationalarmed conflict, while Article 4.3 of the Second Additional Protocol explicitly prohibits the recruitment of children under theage of 15 years by non-State armed groups in the context of a non-international armed conflict.
25
Convention on the Rights of the Child, (1989), Article 38.
26
Rome Statute of the International Criminal Court (2002), Article 8.2 (b) (xxvi) concerning conscription or enlistment into thearmed forces; and Article 8.2 (e) (vii) concerning conscription or enlistment into armed forces or armed groups.
27
Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, (25 May
2000), article 4.
28
International Labour Organization, Worst Forms of Child Labour (No. 182) (1999), Article 1.
29
Worst Forms of Child Labour Recommendation, 1999 (Recommendation No. 190).
30
UNODC Roadmap on the Treatment of Children Associated with Terrorist and Violent Extremist Groups (2019).
31
UNODC, Handbook on Children Recruited and Exploited by Terrorist and Violent Extremist Groups: The Role of theJustice Section, (2017), p. 26-27.
32
See UNODC, Justice for Children in the Context of Counter-Terrorism: A Training Manual, (2019), p. 28. See also: O'Neil,
Siobhan and Van Broeckhoven, Kato, Cradled by Conflict: Child Involvement with Armed Groups in Contemporary Conflict,(New York: United Nations University, 2018), p. 45-46.
33
Hamilton C., and Dutordoir L., Children and justice during and in the aftermath of armed conflict, Working Paper No. 3.
New York: Office of the Special Representative of the Secretary-General for Children and Armed Conflict, (2011), p. 28.

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VISITING EXPERTS’ PAPERS
case, where the Court found that the distinction between voluntary and forced recruitment of a child is not
only legally “irrelevant” but also superficial in practice.34
The principle that these children should be considered and treated primarily as victims has been set by
the Principles and Guidelines on Children Associated with Armed Forces or Armed Groups (“Paris
Principles”).35 In addition, in 2018 the Security Council reinforced the principle by emphasizing that “children
who have been recruited in violation of applicable international law by armed forces and armed groups andare accused of having committed crimes during armed conflicts should be treated primarily as victims of
violations of international law”.36 This has also been reiterated by the Committee on the Rights of the Childthat urged Member States to consider alternatives to prosecution and detention, including measures focusing
primarily on children’s reintegration while applying due process for these children.37
C. Child Recruitment and Exploitation as a Form of Human Trafficking
The Palermo Protocol links exploitation of children directly to their recruitment and other acts oftrafficking. Its Article 3 defines trafficking in persons inter alia as “the recruitment (…) of persons, by meansof the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of
power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve theconsent of another person, for the purpose of exploitation.”38
When committed against adults, trafficking requires the establishment of an element of “means”, including
the threat of force or other forms of coercion cited above, to achieve the consent of a person having control
over another person. Nevertheless, the presence of the “means” element is not required in the case of childtrafficking.39 The fact that the Palermo Protocol does not require this element to be established for children
indicates that the consent of the child, when it comes to recruitment, should always be considered irrelevant.
Where there are indications of exploitation and trafficking of children, it is understood that the child victim
was not free to make clear and informed choices regarding, for example, any possibility of escaping from thetrafficker or finding other alternatives. The principle of non-penalization or non-punishment of victims of
trafficking, including children, has been recognized in regional and international legal instruments40 and isparticularly important to consider when defining the criminal justice response for children accused of offencesin the context of their recruitment and exploitation. The recognition of child recruitment as a form of
trafficking shows how different forms of violence against children are inherently linked.
D. Detention as a Measure of Last Resort
As per international law, a child should only be in detention as a measure of last resort and for the
shortest appropriate period of time.41 Still, many countries continue to deprive children of their liberty.
According to the 2019 United Nations Global Study on Children Deprived of Liberty, there are approximately
1.5 million children deprived of liberty per year on the basis of a judicial or administrative decision. It found34

In its judgment to the Lubanga Dyilo case, the ICC has agreed that the distinction between voluntary and forced
recruitment is superficial in practice in the context of armed conflict. See International Criminal Court (ICC), Situation in the
Democratic Republic of the Congo, in the case of the Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06, (14 March 2012),
para. 612.
35
See UNICEF, The Paris Principles and Guidelines on Children Associated with Armed Forces or Armed Groups, (February2007). This legal instrument is non-binding but nevertheless represents a strong commitment by Member States.
36
Security Council Resolution 2427 (2018).
37
Committee on the Rights of the Child, General Comment No. 24 (2019) on children’s rights in the justice system, 18
September 2019 (CRC/C/GC/24), para 100.
38
Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing theUnited Nations Convention against Transnational Organized Crime, (15 November 2000).
39
Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing theUnited Nations Convention against Transnational Organized Crime, (15 November 2000)., article 3(c).
40
The principle of non-penalization of trafficked persons is recognized in regional and international legal instruments,
including : Council of Europe Convention on Action against Trafficking in Human Beings, art. 26;   Office of the HighCommissioner for Human Rights, Recommended Principles and Guidelines on Human Rights and Human Trafficking,Principles 7 and 8; Basic Principles on the Right to an Effective Remedy for Victims of Trafficking in Persons, article 7 (f)(A/69/269, annex); United Nations Global Plan of Action to Fight Human Trafficking (General Assembly resolution 64/293,
annex).
41
Article 37(b), Convention on the Rights of the Child, (1989).

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that children have been detained in the context of national security in 31 countries and, while at least 35,000
children are deprived of liberty in situations of armed conflict, at least 1,500 children are detained in thecontext of national security in countries without conflicts on their own territories.42
There is a significant body of research demonstrating the harms that children experience when they are
deprived of their liberty, that can hinder their rehabilitation and their ability to assume a constructive rolein society, as per article 40 (1) of the Convention on the Rights of the Child. According to the Global Study,
the impact on children is “inherently distressing, potentially traumatic and [has an] adverse impact on mental
health, often exacerbated by poor treatment and unsatisfactory conditions.”43 Detention in itself disrupts the
positive support networks that children need to rehabilitate and reintegrate including their family and social
relationships, and education and work prospects. It can have significant impacts on the children’s security,
their development and well-being.44 In addition, children who are associated with criminal and armed groups,
including terrorist groups, may be particularly vulnerable to violence by peers, staff of detention facilities orother adults, due to the stigma attached to national security and terrorism. There is often an assumption thatthese children represent a risk and should be subject to targeted measures such as: placement in solitaryconfinement; detention in special sections or facilities under severe security regimes; and being deprived ofaccess to services and programmes such as access to vocational training and education.45 Regardless of theoffence committed, above all, detention of children should be used as a measure of last resort and for the
shortest appropriate period of time, regardless of the gravity or nature of the alleged offence.
E. Primacy of Child Justice Law for All Children in Conflict with the Law
Article 40 of the Convention on the Rights of the Child provides for an obligation of States Parties topromote the establishment of laws, procedures, authorities and institutions specifically applicable to children
alleged as, accused of, or recognized as having infringed the penal law.46 The Committee on the Rights of theChild stressed that trials of children by military tribunals and State security courts are a breach of rights forchildren, who should always be dealt with in specialized child justice systems.47 This means that children
over the minimum age of criminal responsibility and under the age of 18 must be dealt with within a
specialized system irrespective of the severity of the offence that a child is charged with. In this regard, no
exceptions should be permitted according to international law, even for the most serious offences, and a
specialized system should be the primary jurisdiction for children charged with terrorism-related offences.48
A specialized child justice system entails notably the establishment of a minimum age of criminal
responsibility as well as the availability of a variety of dispositions, such as “care, guidance and supervisionorders; counselling; probation; foster care; education and vocational training programmes and otheralternatives to institutional care shall be available to ensure that children are dealt with in a manner
appropriate to their well-being and proportionate both to their circumstances and the offence”.49
F. Prosecution as a Measure of Last Resort and the Application of Alternatives to Judicial Proceedings(Diversion)
The Committee on the Rights of the Child has urged Member States to refrain from charging andprosecuting children for expressions of opinion or association only, as well as to consider non-judicial measuresthat are focused on reintegration as alternatives to prosecution and detention for children recruited andexploited by criminal and armed groups, including those designated as terrorist groups, and children charged
in counter-terrorism contexts.50

42

Nowak, M., United Nations Global Study on Children Deprived of Liberty, (2019), p. 640; 659.
Nowak, M., United Nations Global Study on Children Deprived of Liberty, (2019), p. 261.
44
See also: ICRC, Children in Detention, Brief, (November 2014), p. 16.
45
See UNODC, Justice for Children in the Context of Counter-Terrorism: A Training Manual, (2019), p. 110.
46
Convention on the Rights of the Child, (1989), Article 40(3).
47Committee on the Rights of the Child, General comment No. 24 (2019) on children’s rights in the child justice system, CRC/
C/GC/24, (18 September 2019), para 96.
48
See UNODC, Justice for Children in the Context of Counter-Terrorism: A Training Manual, (2019), p. 48.
49
Convention on the Rights of the Child, (1989), Articles 40(3) and 40(4).
50Committee on the Rights of the Child, General comment No. 24 (2019) on children’s rights in the child justice system, CRC/
C/GC/24, (18 September 2019), paras 100-101.
43

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VISITING EXPERTS’ PAPERS
Alternatives to judicial proceedings, or diversionary measures, aim to channel or divert children in
conflict with the law away from judicial proceedings through the development and implementation ofprocedures and programmes that foster their rehabilitation and reintegration.51 According to internationallaw, they should be, whenever appropriate and desirable, available for children, providing that human rights
and legal safeguards are fully respected.52 The Global Counterterrorism Forum (GCTF) has produced
recommendations which emphasize that successful alternative interventions such as diversion can reduce
the risk of public safety and security by effectively rehabilitating and reintegrating individuals so that they
can become productive members of society.53 Nevertheless, applying diversionary measures for children in
terrorism-related proceedings can be hindered by different factors such as justice professionals’ lack ofknowledge and resources to implement these measures effectively or legislation restricting the use ofdiversion to certain types of offences. Given the seriousness of crimes and threats posed to national security
in the context of counter-terrorism or organized crime, many justice professionals may also consider thatdiversionary measures are not suitable as a response to children suspected of such offences.54
However, it is important to stress that there are no limitations under international law on the use ofdiversion, and it can and should be used when children are suspected of terrorism-related offences as muchas for other serious offences whenever deemed appropriate.55 Diversionary measures, including restorative
justice measures, should not be perceived as “soft measures” but can be ways most adapted to addressing
the root causes of the child’s involvement with crime and violence. Individual assessment of children in
conflict with the law can be a useful tool for strategic and planning considerations, keeping in mind thatdiversion from judicial proceedings can be introduced at any stage of the justice process by different justiceprofessionals, depending on the conditions set by national law.56
G. Rehabilitation and Reintegration as Primary Objectives for Children Recruited and Exploited byCriminal and Armed Groups, Including Terrorist Groups
As per the Convention on the Rights of the Child, States shall take all appropriate measures to promote
physical and psychological recovery and social reintegration of a child victim of any form of neglect,
exploitation, abuse, recruitment etc.57 When it comes to children in conflict with the law more specifically,
the Convention also stresses the desirability of promoting the child’s reintegration and the child’s assuming
a constructive role in society.58 This is particularly important also in the context of justice responses tochildren recruited and exploited by criminal and armed groups, including terrorist groups, in view of theserious forms of victimization suffered by these children.
The “rehabilitation” or recovery of child victims of recruitment and exploitation by criminal and armed
groups, including terrorist groups, includes medical and psychological care and required legal and social
services to be provided to children for them to recover from physical and psychological harm and help them
resume a normal life.59 The Optional Protocol on the Involvement of Children in Armed Conflict60 also callson States to provide assistance to victims of child recruitment for the purposes of their rehabilitation.
On the other hand, “reintegration” refers to the safe process through which a child victim and/or a child
who has been in conflict with the law transitions back into the community, recovers physically andpsychologically and acquires attitudes and behaviours conducive to assuming a constructive role in society61
51

UNICEF, Toolkit on Diversion and Alternatives to Detention (2009), Glossary of Terms.
Convention on the Rights of the Child, (1989), Article 40(3)(b).
53
GCTF, Recommendations on the Effective Use of Appropriate Alternative Measures for Terrorism-Related Offenses, (2015).
54
See UNODC, Justice for Children in the Context of Counter-Terrorism: A Training Manual, (2019), p. 74.
55
Committee on the Rights of the Child, General comment No. 24 (2019) on children’s rights in the child justice system, CRC/
C/GC/24, (18 September 2019), para 100.
56
See UNODC, Rehabilitation and Reintegration of Child Victims of Recruitment and Exploitation by Terrorist and Violent
Extremist Groups: A Training Manual (2019).
57
Convention on the Rights of the Child, (1989), Article 39.
58
Convention on the Rights of the Child, (1989), Article 40(1).
59
See UNODC, Justice in Matters involving Child Victims and Witnesses of Crime Model Law and Related Commentary, (2009),
p. 58 of the commentary in reference to article 29 (7) (c).
60
Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, (25 May
2000), Articles 6 and 7.
61
This definition has been adapted from article 39 and 40 of the Convention on the Rights of the Child. It takes into account
52

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RESOURCE MATERIAL SERIES No. 115
in accordance with articles 37 (b) and 40 (4) of the Convention on the Rights of the Child. Challenges that need
to be taken into account when it comes to ensuring effective rehabilitation and reintegration in the national
security and counter-terrorism context may include the experience of violence of children, stigma andexclusion attached to the type of offence, as well as the impact of deprivation of liberty. Access to psychosocial support is an important part of a child’s rehabilitation, as well as a precondition for reintegration.62 It
includes various forms of interventions such as life skills, emotional management and mentoring. A strengthsbased approach to rehabilitation builds on pre-existing strengths of the child, helping the child develop newstrengths and capabilities and may help her or him build self-confidence, learn to trust and develop new
relationships.63

V. CONCLUSION
When it comes to the treatment of children recruited and exploited by criminal and armed groups,
including terrorist groups, by the justice system, responses to the difficult questions often arising in thecontext of national security and counter-terrorism can be found in international law, as well as standards andnorms. While children associated with these groups may have been exposed to extreme levels of violence
and may therefore have special rehabilitation and reintegration needs, the international legal framework on
justice for children should apply to all children, regardless of the gravity of the offence. It is important torecognize these children’s status and treatment as primarily victims, irrespective of their potential status asalleged offenders. Moving away from punitive approaches towards child-sensitive justice approaches is key
in order to address children’s rehabilitation and reintegration needs, and to avoid lasting consequences forchildren’s and society’s development alike.
References
Committee on the Rights of the Child, General comment No. 24 (2019) on children’s rights in the child justicesystem, CRC/C/GC/24, (18 September 2019).
Convention on the Rights of the Child, (1989).
First Additional Protocol to the Geneva Conventions (1977).
GCTF, Recommendations on the Effective Use of Appropriate Alternative Measures for Terrorism-Related
Offenses, (2015).
General Assembly Resolution 70/291(2016).
Gómez, “Testing the Cycle of Violence Hypothesis: Child Abuse and Adolescent Dating Violence as Predictorsof Intimate Partner Violence in Young Adulthood” Youth & Society 43(1) (2011).
Hamilton C., and Dutordoir L., Children and justice during and in the aftermath of armed conflict, Working
Paper No. 3. New York: Office of the Special Representative of the Secretary-General for Children andArmed Conflict, (2011).

The Paris Principles and Guidelines on Children Associated with Armed Forces or Armed Groups, (February 2007). See also
UNODC, Handbook on Children Recruited and Exploited by Terrorist and Violent Extremist Groups: The Role of the JusticeSection (2017), p. 75-76.
62
It includes various forms of interventions such as life skills, emotional management and mentoring.  Ideally, psychosocial
interventions should be combined with other interventions that address material wellbeing, health, education, and protection,and that build on local resources and coping mechanisms. See UNODC, Rehabilitation and Reintegration of Child Victims of
Recruitment and Exploitation by Terrorist and Violent Extremist Groups: A Training Manual, (2019), pp. 23-30.
63
See UNODC (2019), Rehabilitation and Reintegration of Child Victims of Recruitment and Exploitation by Terrorist andViolent Extremist Groups: A Training Manual, p. 132.

30

VISITING EXPERTS’ PAPERS
ICRC, Children in Detention, Brief, (November 2014).
International Convention for the Suppression of Terrorist Bombings, (1997).
International Criminal Court (ICC), Situation in the Democratic Republic of the Congo, in the case of theProsecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06, (14 March 2012).
International Labour Organization, Worst Forms of Child Labour (No. 182) (1999).
Lam et al., “Will Victims Become Aggressors or Vice Versa? A Cross-Lagged Analysis of School Aggression”
Journal of Abnormal Child Psychology (2017).
Maxfield and Spatz Widom, “The Cycle of Violence: Revisited 6 years later” Paediatrics & Adolescent
Medicine 150, 4 (1996).
Nowak, M., United Nations Global Study on Children Deprived of Liberty, (2019).
O'Neil, Siobhan and Van Broeckhoven, Kato, Cradled by Conflict: Child Involvement with Armed Groups inContemporary Conflict, New York: United Nations University, (2018).
Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed
conflict, (25 May 2000).
Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children,
supplementing the United Nations Convention against Transnational Organized Crime, (15 November
2000).
Psychiatric Times, “From Victim to Aggressor” Psychiatric Times 24(7) (1 June 2007).
Rome Statute of the International Criminal Court (2002).
Second Additional Protocol to the Geneva Conventions (1977).
Security Council Resolution 1373(2001).
Security Council Resolution 2178(2014).
Security Council Resolution 2427 (2018).
SOS Children Villages International, The Right to Protection: Ending Violence Against Children (2017).
UNICEF, The Paris Principles and Guidelines on Children Associated with Armed Forces or Armed Groups,(February 2007).
UNICEF, Toolkit on Diversion and Alternatives to Detention (2009).
United Nations Global Study on Children Deprived of Liberty (2019).
United Nations Model Strategies and Practical Measures on Violence against Children, A/RES/69/194 (18December 2014).
UNODC Roadmap on the Treatment of Children Associated with Terrorist and Violent Extremist Groups(2019).
UNODC, Handbook on Children Recruited and Exploited by Terrorist and Violent Extremist Groups: The
Role of the Justice Section, (2017).
UNODC, Justice for Children in the Context of Counter-Terrorism: A Training Manual, (2019).

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RESOURCE MATERIAL SERIES No. 115
UNODC, Justice in Matters involving Child Victims and Witnesses of Crime Model Law and Related
Commentary, (2009).
UNODC, Prevention of Child Recruitment and Exploitation by Terrorist and Violent Extremist Groups: The
Role of the Justice System: A Training Manual, (2019).
UNODC, Rehabilitation and Reintegration of Child Victims of Recruitment and Exploitation by Terrorist andViolent Extremist Groups: A Training Manual (2019).
WHO Regional Office for Europe, The Cycles of Violence: The Relationship Between Childhood Maltreatment
and The Risk of Later Becoming a Victim or Perpetrator of Violence (EUR/07/50631214) (2007).
WHO, Global status report on preventing violence against children 2020, (2020).
Worst Forms of Child Labour Recommendation, 1999 (Recommendation No. 190).

32

PARTICIPANTS’ PAPERS
IMPLEMENTING EFFECTIVE REHABILITATION AND COMMUNITYREINTEGRATION PRACTICES FOR YOUNG OFFENDERS IN SINGAPORE
Tay Yan Lee Angeline*

I. BACKGROUNDThis paper outlines Singapore’s efforts to implement effective rehabilitation and Community Reintegration
Practices for young offenders sentenced to Reformative Training Centre. Singapore’s robust criminal justicesystem consists of tough laws against crime, highly professional and prosecutorial agencies such as the police
force, the Corrupt Practices Investigation Bureau and the Attorney-General’s Chambers, as well as our
independent, efficient, and effective judiciary.
In addition to efforts to prevent and fight crime, Singapore has also focused and invested resources in the
rehabilitation of offenders, especially juvenile and young offenders. As a nation, Singapore’s response to youth
offending has been to pursue a fine equilibrium in the management of juvenile offenders such that the justiceand restorative models complement each other as mutually supportive elements of the juvenile justicesystem.

II. JUVENILE OFFENDERS IN SINGAPORE
A. Juveniles and Young Offenders in Singapore
In Singapore, persons aged 10 to under 16 years old are defined as “juveniles” while a person who is 14
years of age or above and below the age of 18 can be referred to as a “young person”. The following
principles and considerations underpin the rehabilitation of juvenile offenders in Singapore:(i) Diversion from court process where possible and appropriate;(ii) Institutionalization as the last resort;(iii) The family as the basic building block of society and change agent;(iv) The many helping hands approach to community rehabilitation.
Juveniles who have committed offences are not excused of accountability for their misconduct. However,principles of care, welfare and protection are in place through a continuum of preventive and rehabilitative
services available for their respective circumstances. Community-based rehabilitation programmes such as
the Community Service Order (CSO) and Probation Order are used to rehabilitate young offenders in thecommunity. Residential rehabilitation programmes such as Juvenile Rehabilitation Centres and Reformative
Training Centre (RTC) belong to the tail-end of the continuum, where RTC is seen as a last resort for the
young person. The reformative training sentence is reformative in nature compared to an imprisonment
sentence. Rehabilitation efforts in RTC have led to positive outcomes thus far and further elaboration will beshared in the subsequent sections.
Looking at the youth offending situation in Singapore, there was a 43.3 per cent fall in the number of youth
offenders between 2010 and 2020. The number of juvenile and young offenders has been on a general
downward trend in the past decade. It should be noted, however, that the decline in the number of youth
offenders between 2019 and 2020 might be partly due to the temporary impact of the Covid-19 pandemic andthe resulting movement restrictions, which might have disrupted the commission of certain types of crimes.
* Senior Assistant Director (Correctional Rehabilitation Services Branch, RT), Correctional Rehabilitation Services (Reformative
Training) / Cluster C, Singapore Prison Service, Singapore.

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RESOURCE MATERIAL SERIES No. 115
Despite the downward trend, from 2016 to 2020, three types of offences were observed to be on an upward
trend namely shop theft, cheating and related offences, and drug abuse. Across the four years, there werefour times the number of male young offenders compared to female young offenders.
B. Singapore’s Evidence-informed Rehabilitation and Reintegration
In Singapore, we believe every offender, especially a young person, has the potential to live a crime-freelife and be a contributing member of society. This first part of the paper will discuss Singapore’s rehabilitation
approach and the factors necessary to make it work.
Firstly, to help offenders desist from crime, the Singapore Prison Service (SPS) adopts evidence-informed
rehabilitation and reintegration practices. Singapore’s rehabilitation system is based on both international
and locally conducted research that is contextualized. Our experience highlights that a throughcare approachthat includes intervention programmes conducted during the in-care phase would be better supported by the
pre-release preparation and reintegration case management in the community.
Secondly, SPS designs psychology-based correctional programmes (or PCPs),1 drawing from evidenceinformed models in the corrections literature such as from the Risk-Need-Responsivity (RNR) model,2 theGood Lives Model3 (GLM) and Desistance Theory.4 As each young person has unique needs, differentiatedrehabilitative intervention programmes are aligned to various rehabilitation needs of the RTs.
Thirdly, Singapore applies the principles of implementation science, which is the scientific study ofmethods to promote the integration of research findings and evidence-informed interventions into policy andpractice. As part of implementation science, we evaluate our programmes on both process and outcome.

III. REFORMATIVE TRAINEES (RTS)
A. Minimum Detention Period
Research has shown that youths with shorter institutional stays were found to have lower recidivism
rates5 and that longer detention may work against their rehabilitation. A minimum detention period of six or
twelve months followed up by community supervision are legislated for young persons sentenced to RTC.
The release of the trainees to community supervision will be subject to their progress and suitability forrelease, such as: responsivity to rehabilitation, family support, and aftercare arrangements. While therecidivism rate for 2019 was recorded to be lower than the previous years, SPS continues to observe andmonitor the revised RT Regime’s impact on supporting rehabilitation and successful reintegration of theyoung offenders.
B. Profile
According to Erikson’s stages of psychosocial development, youths develop a sense of identity as they
make the transition from childhood to adulthood. During this phase, youths may experience some role
confusion and experiment with a variety of behaviours and activities as they seek to achieve an identity.
These behaviours and activities may be risky as youths typically have problems anticipating consequences
and controlling their impulses due to the under-development of the part of the brain that is responsible for
1

PCPs play an important role in the rehabilitation of offenders, stimulating readiness to change in offenders and helping themunderstand the factors which contributed to their offending behaviours. These interventions provide structured learning andapplication of prosocial skills to aid the offenders in developing a reintegration plan that addresses their unique life situations,challenges, and goals.
2
Andrews, D. A. & Dowden, C. (2006). “Risk Principle of Case Classification in Correctional Treatment: A meta-analytic
investigation.” International Journal of Offender Therapy and Comparative Criminology, 50 (1), 88–100.
3
Ward, T., & Stewart, C. A. (2003). “Good lives and the rehabilitation of offenders: A positive approach to treatment.” In
Linley, A. & Joseph, S. (Eds.), Positive Psychology in Practice (pp. 598-616). John Wiley & Sons.
4
Maruna, S. (2003). “Desistance from Crime: A Theoretical Reformulation.” Cologne Journal for Sociology and Social
Psychology, 43, 171-194.
5
Winokur, Smith, Bontrager, Blankenship (2008). Juvenile recidivism and length of stay. Journal of Criminal Justice, 36, 126137.

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PARTICIPANTS’ PAPERS
executive functioning. Below are some of the descriptive characteristics of RTs generally observed by RTC
staff:••••

Short attention span;
Prevalence of gang affiliations;
Lack of motivation to change;
Lack of family support.

C. Operating ModelIn consideration of the existing literature and reformative nature of the RT sentence, the RT philosophy
is one that believes that every youth is capable of change. We aspire to create a safe and supportive
environment that empowers youths to take ownership of their lives and realize their potential. Within RTC,
RTs would be engaged actively in programmes and by staff to live out the values that were jointly chosen
by RTC staff, further amplifying the behaviours exhibited by each RT. In RTC, the respective elements ofintentional staff engagement, programmes, and processes, defined RTC as a “Transformative Environment(TE)”. Further elaborations of the TE will be shared in the subsequent segment.
D. Transformative Environment – Staff
Staff are a critical factor in the transformative environment as RTs generally portray a lack of motivation
to change with mandated programmes to attend. Voluntary and genuine emotional involvement (trust,
support, reciprocity) have been found to be critical in the development of working alliances between support
persons working with the youths.6 Youths who have good relationships with correctional staff perceived thegreatest likelihood of success on release in the following areas – potential for success, social networks,
managing substance abuse/ reoffending, and conflict reduction. In this regard, staff are intentional in forming
working alliances with each RT and through the engagement, impact positively towards their change journey.
One of the ways this is done is through the adoption of restorative practices7 in the daily engagement with
RTs and use a collaborative stance when working with the RT as part of the management strategy.
RTC staff, consisting of correctional unit officers (CUO), correctional rehabilitation specialists (CRS) andreintegration officers (RO) work closely with each other to support the rehabilitation and reintegration of theRTs. CUOs are uniformed staff who carry out daily routine operations and facilitate the smooth attendanceof RTs for their respective programmes. On top of these functions, the CUO takes on a secondary role akinto a life coach to the RTs, motivating them towards planning their prosocial life upon release from RTC.
While they used to focus on delivery of psychological interventions, CRSs have in recent years taken on amore active role in the daily routine operations of RTC, for example, facilitating restorative circles among
RTs and engaging RTs’ families.
To help CUOs better engage, manage, and positively influence the RTs, specialized training in the areasof youth developmental theories, engagement of youths, management of resistant youths, and managementof mental health issues in youths are provided. The concerted effort from the various stakeholders in the
rehabilitation of RTs would not only allow for the development and implementation of both sound operationaland rehabilitation policies that characterize the Transformative Environment in RTC, but also ensure an
increase in quantity and quality of services. For example, it helps staff to understand how to work with RTs
who might present with a short attention span.
E. Transformative Environment – Prison School or Vocational Training
Currently, RTs are channelled into either the education or vocational training pathway based on theirinterests and eligibility. RTs could pursue an education at the Prison School, i.e., National Institute of Technical
Education (ITE) Certificates, GCE “N” Levels, “O” Levels, or “A” Levels during their stay in RTC. For RTs
who are on the vocational training pathway, they could also attend courses under the Singapore Workforce
Skills Qualifications (WSQ) framework to acquire marketable vocational skills to enhance their employability.

6

Marsh, S. C. & Evans, W. P. (2009). Youth Perspectives on their Relationships With Staff in Juvenile Correction Settings andPerceived Likelihood of Success of Release. Youth Violence and Juvenile Justice, 7, 46-67.
7
Costello, B., Wachtel, J. & Costello, T. (2009). The Restorative Practices Handbook. International Institute for Restorative
Practices, p. 50.

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F. Transformative Environment – Psychology-based Correctional Programmes (PCP)The programme framework for the tier-based PCPs is developed based on the evidence-informed
Principles of Effective Rehabilitation, namely the Risk-Needs-Responsivity (RNR) model, which prescribes a
differentiated approach of rehabilitation for young offenders with different rehabilitation needs profiles basedon empirically supported assessments. In the programme, RTs attend different tiering of PCPs based on
their assessed needs. They are guided to evaluate the extent that their offending behaviours helped themachieve their goals and are equipped with skills to secure their goals in more socially acceptable ways.
Considering the developmental needs of the youth offenders, specific intervention strategies areincorporated in the tier-based PCPs to make them youth centric. For instance, narrative and strength-based
approaches are utilized to support the youths in developing a pro-social narrative of self-identity to enhancetheir sense of agency in desisting from crime and violence. Youths are responsive to active modes of learning;
hence more hands-on and experiential activities are designed to increase their levels of engagement.
G. Transformative Environment – Family Engagement
SPS recognizes that good family support during incarceration is essential to an offender’s rehabilitation
journey. Family programmes seek to increase offenders’ knowledge, skills, and confidence in maintaining ties
and rebuilding stronger relationships with their loved ones. Through these programmes, offenders learn
about the roles in their families and take meaningful actions to change for the sake of their families.8
Research has shown that the involvement of the family and the community is critical in the effective
rehabilitation of young offenders. RTC staff observed that family support was lacking for the RTs, and they
had also turned towards forging closer ties with friends from their gangs, many of whom RTs considered as
their “family”. Besides the family programmes, RT’s families are also engaged regularly by both CUO andCRS on the progress of their children before supporting the reintegration of RTs back to their families. As
we encourage closer family ties to be bridged and rekindled, we also observed that RTs often would begin
to distance themselves from their gang affiliations. Thus, engaging the families, helps with the overcomingof challenges stated earlier.
H. Future Action Plans
Moving forward, we believe we can do more in expanding the prosocial supportive network of each RT
by providing a positive Befriender prior to community supervision. The Befriender could also increase thesocial capital of the young offender by sharing his/her resources such as employment and leisure-activity
options.
Our current efforts in engaging RT’s families have illuminated the possible reintegration challenges facedby the RT when he/she returns home. We believe that with timely assessment of and providing the support
needed by the families of our youths, it would further allow us to equip families as they provide guidance
and love.
Considering the developmental stages of the RTs, another possible exploration would be to enhance thecurrent array of employment options for RTs and allowing them to have concrete job matches before ROS.
Employment brings with it opportunities to practice the various skills shared during the PCP programmes,and being financially independent could further develop the young offenders, propelling them towards living
meaningful prosocial lives.

IV. CONCLUSION
Over the past decade, SPS has incorporated and implemented youth-informed practices that attend toyouths’ pathways to offending. The practices include: (1) developing evidence-informed youth targeted8
As part of SPS’s continuous review of programmes, two programmes – the Social Skills Training Programme (SSTP) andthe Family Reintegration Programme (FRP), were developed and implemented. Attended by all newly admitted offenders,
SSTP seeks to raise their awareness of the impact crime and incarceration have on family relationships. It also equips themwith basic skills in managing and enhancing family and social relationships, such as communication skills, conflict resolution
skills and emotion regulation techniques.

36PARTICIPANTS’ PAPERS
programmes and processes in the transformative environment which addresses social skills for pro-social
living; (2) implementing staff training and encouraging collaborations between operations and rehabilitation
staff to equip staff with skills to de-escalate conflict and deal with offenders’ motivation to change; (3) family
and parenting programmes that address the parental guidance and positive supervision of RTs, and (4)conducting community interventions that support RTs when they are out in the community to facilitate
successful rehabilitation and reintegration.
All in all, our approach is underpinned by the belief that every person in Singapore, especially our young
offenders, has the right to live in an environment free of crime, and that young offenders should be provided
with the necessary help to rehabilitate and successfully reintegrate into our society as contributing citizens.

37THE JUVENILE JUSTICE SYSTEM IN SRI LANKA THROUGH A
CRITICAL EYE
Jalashi Changa Lokunarangoda*

I. ABSTRACT
A child is considered a person under the age of 18. This internationally accepted age might be different
when it comes to different jurisdictions. However, the term “juvenile” is used for those children who areunder the age of 18. In the whole world, children are considered to be a vulnerable group, as they are notable to make decisions alone, and they can be subjected to abuse easily. Therefore, it is an internationallyaccepted norm that juveniles should be kept out of prisons although they have committed very serious acts.
A number of international instruments come into play in order to uphold juvenile justice.
The United Nations Convention on the Rights of the Child is considered as the most important pieceamong all the other international instruments. Also, the Beijing Rules (UN Standard Minimum Rules for the
Administration of Juvenile Justice) set out the boundaries for juvenile delinquency. Despite the fact that
there are many other international instruments, Sri Lanka mainly adheres to those two instruments. Sri
Lanka, however, adopts a different judicial process which is unique to its own legal system when it comes tojuvenile cases. It mainly focuses on rehabilitation and reintegration when it comes to punishments. Sri
Lanka’s legal framework has set out a number of protective methods for the betterment of juveniles.
 The Constitution of 1978 has a separate chapter on fundamental rights, and it safeguards the rights ofevery citizen including all children.
 Directive principles set out the State’s obligation to protect and promote the rights of children andtheir best interests.
 The Child Rights Charter, which had come into effect after the ratification of the United Nations
Convention on the Rights of the Child, also had contributed immensely in upholding juvenile justice.
 The Children and Young Persons Ordinance No. 48 of 1939 stipulated the definition of a child and also
provided provisions for the establishment of the juvenile court in the country.
 Penal Code Act No. 2 of 1882 sets out the age of criminal responsibility
 Youthful Offenders (Training Schools) Ordinance No. 28 of 1939
 Code of Criminal Procedure Act No. 15 of 1979
 Probation of Offenders Ordinance No. 42 of 1944
 Prison Ordinance No. 16 of 1877
Although there is comprehensive legislation which safeguards the rights of juveniles which goes hand inhand with the international setup, there are loopholes which have to be addressed immediately in order tomeet the real ends of justice.

II. INTRODUCTION
The definition of a juvenile under the Sri Lankan legal point of view is different compared to the* Fiat counsel/ Legal officer of the Child Protection Unit, Attorney General’s Department, Sri Lanka (Attorney-at-Law, LL.B
(Hons), Masters in Human Rights & Democratization, LL.M in criminal Justice administration, Dip. in International Relations,Dip. in death investigation)

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RESOURCE MATERIAL SERIES No. 115
internationally accepted view. According to the Children and Young Persons Ordinance,1 a child means aperson under the age of 14 years and a young person means a person who has attained the age of 14 years
but is under the age of 16 years. Young persons who are between the ages of 16-18 are not consideredjuveniles under this ordinance. However, according to the children’s charter2 of Sri Lanka, a child means any
person under the age of 18. Therefore, it is clear that there is an inconsistency in Sri Lankan Law as to thedefinition of a child.
Juvenile delinquency means a distinct set of offences created for children and adolescent persons. Sri
Lanka follows a distinct judicial process to try juvenile delinquency cases and also adopts distinct methodsof punishments which focus on their rehabilitation, correction and reintegration into society as law-abiding
citizens. However, the prevailing correctional methods, mainly the institutional rehabilitation methods, were
not successfully reached due to various problems and flaws.
Sri Lanka has adopted both institutional and community-based mechanisms in the correctional procedureof juvenile delinquency which interconnects with the process of juvenile offenders. Most of the time convictedchildren and young persons are not committed to prisons. They will be sent either to remand homes,
approved or certified schools. Those are the three types of correctional institutions established under the
CYPO3 to rehabilitate children and young persons during the period of punishment. These institutions areadministered by the Department of Probation and Child Care and the correction programmes are conductedby the Provincial Department of Probation and Child Care Service.
The existing legal framework dictates that if somebody who is below 16 years of age has committed acrime, they should be sent to a remand home for an interval not exceeding a month. If the criminal is under
18 and the offence is punishable by death, the court should detain them in a remand home until the president
pardons them. For any indictable crime, the court should detain them in the remand home until the Minister'spleasure is fulfilled. Juveniles may be committed to a certified or accepted school for a maximum period of
three years. Nonetheless, if the court finds the juvenile to be unruly or defiant and unable to be held in aremand home or a licensed school, they may be incarcerated.
As discussed in the abstract section, Sri Lanka has a very comprehensive legislative framework when it
comes to juvenile justice. Although it is comprehensive, there are ongoing issues which have to be addressedin order to achieve justice.

III. JUVENILES & THE LAW
A. Legal Framework
Sri Lanka ratified the CRC4 on 12 July 1990. The primary Acts governing juvenile justice in Sri Lanka are:(1) The Children and Young Person Ordinance, No. 48 of 1939 (CYPO);(2) The Probation of Offenders Act, No. 10 of 1948 (POA); and(3) The Youthful Offenders (Training School) Act, No. 42 of 1944 (YOTSA).
(4) Penal Code of Sri Lanka 1885
1. CYPOThe CYPO can be considered as the main legislative enactment which safeguards the rights of juveniles.
It mainly provides for the establishment of Juvenile Courts, the treatment of juvenile offenders and thesafeguarding of children and young persons in need of care and protection. It also provides for theestablishment of separate Juvenile Courts for the purpose of hearing cases dealing with children and young
persons. According to the CYPO, a “Juvenile Court” is a court of limited power that convenes to listen toaccusations brought against children and adolescents, or to exercise other authority granted to it. This court
1Children and Young Persons Ordinance No. 48 of 1939.
Child Rights Charter.
3Children and Young Persons Ordinance No. 48 of 1939.
4
Convention on the Rights of the Child 1989.
2

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PARTICIPANTS’ PAPERS
also offers a specialized system of Juvenile Courts and alternative punishments in order to protect theinterests of children who are part of the justice system.
CYPO5 requires a law enforcement officer to notify a relevant Probation Officer (PO) in the event a childor young person is to be brought before a Magistrate. In terms of section 17(2) of the CYPO, upon receiving
notification from a law enforcement officer, the PO is required to investigate the background of the child andprepare a report to be submitted to the court.6 Section 13 of the CYPO casts a specific obligation on law
enforcement officers and the court to ensure the separation of children or young persons from adult offenders
during the pendency of their case.7 This section fulfils the conditions established in article 37 of the CRC,  
that every minor who has been deprived of their freedom should be kept separate from adults unless it isadvantageous for the child to not follow this guideline.
In the event a child or young person is found guilty of an offence, the CYPO grants the court thediscretion to order both institutional and non-institutional sentences. Institutional sentences include:(a) committing the individual to custody in a remand home for a specified period that does not exceed one
month,(b) ordering that the individual (provided that he or she has reached twelve years of age) be sent to an
approved or certified school for a period of three years.
Non-institutional sentences include:(a) placing the individual in the care of a PO,(b) placing the individual in the care of a parent, guardian or relative that executes a bond (with orwithout sureties), or(c) placing the individual in the care of a fit person.
Under all of the above, the court is also permitted to levy a fine.
The CYPO also places an obligation8 on courts to commit a child that is not released on bail to a remandhome instead of a prison until the conclusion of his or her trial. Furthermore, under this section, courts aremandated to commit a young person to a remand home instead of a prison, unless he or she is “so unruly”
or “depraved” as to make detention in a remand home unsafe for the existing occupants. Moreover, section
23(1) of the CYPO states that a child or young person shall not be committed to prison in default of thepayment of a fine.
2. POA
The POA stipulates the conditions in which a court can impose a Probation Order. This order is used as
an alternative to placing children who commit a crime in a correctional facility. The YOTSA outlines the
setup of training schools to detain, educate, and reform male delinquents aged 16-22.
3. 	PCThe Penal Code9 sets out the minimum age of criminal responsibility. Earlier the age of criminal
responsibility was set out as 8 years,10 and also section 76 has stipulated that nothing constituted an offence
which is committed by a child above the age of 8 years and under the age of 14 years who has not attained
sufficient maturity of understanding.11 However, this has been recently amended, and the age of criminal
responsibility has been raised to 12 years,12 and the age of sufficient maturity level had been raised to 12-14
years.
5

Section 17(1) of the CYPO.
Ibid., Section 17(2).
7Ibid., Section 13.
8
Ibid., Section 15.
9Penal Code 1885.
10Ibid., Section 75.
11Ibid., Section 76.
12
Section 75 of the Penal Code amended by Act No.10 of 2018.
641

RESOURCE MATERIAL SERIES No. 115
B. Setup and Shortfalls
1. Stipulate a uniform definition of a child, and an internationally acceptable age of minimum criminal
responsibility.
2. Consider the deprivation of a child’s liberty being a matter of last resort.
3. Prioritize the diversion of children away from the formal justice system.
4. Distinguish the responses applicable to children in conflict with the law and children in need of careand protection.
5. According to Article 40 of the CRC,13 incorporate alternatives to institutionalization such as access tocounselling, foster care, education and vocational training. However, it appears that Sri Lanka lacks
these kinds of alternatives.
6. The CYPO has no obligation to keep the child informed of the progress of their case, provide detailsof their impending legal proceedings, or explain their reasons for being arrested. This lack of information
could be detrimental to the child’s safety and legal rights when they come into contact with the justicesystem.
7. Due to the term “Juvenile Courts” being applied to the courts that are responsible for hearing cases
concerning children, it can give off the impression that the children who appear in these courts are
criminals, rather than those who might require help. It is necessary to amend the name given to thesecourts in order to avoid any misconceptions.
8. In order to collect evidence to determine if a child has committed an offence, section 10(2) of the CYPO
allows the Juvenile Court to remand the child in question for a period not exceeding twenty-one days.
However, this time limit does not align with international frameworks that require children to be
deprived of their liberty for the shortest possible period of time.
9. Even though a distinction is made under the CYPO when dealing with the treatment of children undersixteen and adult offenders, the final outcome may not be any different. According to the CYPO14 a
detention order by an approved or certified school lasts for a period of three years, which is longer
than an adult would be detained for an equal offence.
10. The CYPO defines a “young person” as an individual between the ages of fourteen and sixteen.
Therefore, children between the ages of sixteen and eighteen are placed in the formal justice system,and treated in the same way as adults. Also, children of those ages are incarcerated in prisons withother adult offenders, thereby further obstructing their rehabilitation and reintegration into society.
11. It appears that the courts were not placing enough importance on the social report given by thepertinent PO when it comes to sentencing.
12. There is no comprehensive register of childcare institutions, which indirectly challenges the courts
when selecting institutions that are best able to address the unique requirements of children in needof care and protection.
13. Because there is an inadequate number of childcare organizations, Courts are generally forced to put
children who are in conflict with the law, as well as those who are victims of crime, in the same facility.
These places tend to be of a punitive nature, which can result in the traumatization of both theperpetrators and victims.

13
14

Article 40(3)(b) United Nations Convention on the Rights of the Child.
Section 42(2) of the CYPO.

42

PARTICIPANTS’ PAPERS
C. Institutional Framework
These institutions include: Sri Lanka Police, the Attorney General’s Department, the Judicial Medical
Officer, the Courts, the Department of Probation and Child Care Services and the National Child Protection
Authority.
The Department of Probation and Childcare Services is responsible for administering correctional andsupport services to young offenders and those in need of care and protection. The Department supervises
the work of Probation Officers and Child Rights Promotion Officers, and they also offer institutional care as
an alternative way of safeguarding children in the legal system.
The CYPO mandates POs to oversee minors who have broken the law and to guarantee the welfare ofyoungsters who need care and support and have been assigned to their custody. POs are also entitled to be
informed by the police if there is a child or adolescent who is brought to court. In this regard, POs have thepossibility to make sure that kids are safeguarded within the legal system.
The department has various centres which are tailored to the needs of the children depending on theirage. There are six Remand Homes which look after children during the pre-trial phase, while five Certified
Schools offer organized vocational training. Additionally, each state has a Safe House which offers housing
and care for those with pending court cases. The eight Receiving Homes provide a safe and protective
environment for those who are unable to stay with their families either temporarily or in the long term.
Those with misbehaving tendencies are taken to National Training and Counseling Centers, while Approved
Schools, Voluntary Children's institutions, and Detention Homes look after the other children.

IV. APPLICATION OF LAW
A. Hypothetical Scenario
Offence: Grave sexual abuse / S.365B(2)(b) of the Penal Code of Sri Lanka.
Age of the victim:  6 years
Age of the suspect: 14 years & 5 months
Facts of the case:- The victim is the brother of the suspect.
- Suspect is mentally ill but has not undergone any medical treatment due to the financial situation.
- Suspect had dropped out from school when he was 10 years old due to continuous bullying by friends
and teachers.
- Their father had abandoned them. Their mother is the sole breadwinner of the family and she takes
care of both these children by working day and night.
- Most of the time the children are living alone at their home.
- One day the suspect had sexually abused the victim (the act amounted to GSA).
- The complaint had been lodged by a neighbour.
- Version of the victim- This is the only time that the suspect had done something like this.
- The suspect loves him a lot.
- Suspect is the one who had look to after him when the mother is not around.

43

RESOURCE MATERIAL SERIES No. 115
A) Action Flow

Indictment(High court)

Dismissal

B. Discussion
 Is he a child according to CYPO?
No. He should have to be below the age of 14. However, according to the Penal law, he is considered to
be a child as the age is below 18.
 Can a juvenile be arrested?
Yes. There is no bar to that. (This is not a formal arrest like putting on handcuffs)
 Can a juvenile be detained?
Yes. There is no bar. Children may be detained in remand homes for children, or the OIC of the police
can grant bail without detaining.
 Should this case be referred to the formal hearing?
There is no alternative method to solve this kind of offence apart from formal hearing. After referral tojuvenile court, the case can be dismissed.
 Are the risk factors accessed before the formal hearing?
No, they will be assessed during the process of hearing.
 Is every juvenile case referred to the two juvenile courts?
No, since we have only two courts, the cases will be referred to Magistrate’s court sitting as a juvenile
court.

V. RECOMMENDATIONS
The children are more susceptible to forms of rehabilitation than adults. A majority of persons that comeinto conflict with the law in their youth grow up to be righteous citizens. Therefore, the correct path needs
to be shown to the child offenders. That will make them law-abiding citizens in this country. There are a lotof changes which need to be done in order to achieve the correct path. Some of them are mentioned below.
-

44

The Penal Code is recommended to be amended, so a line is drawn between the age of commission ofa crime and the age at which the conviction is made.

PARTICIPANTS’ PAPERS-

Alternative legal frameworks to handle children in conflict with the law should be prioritized.
Effective educational opportunities and counselling, stabilizing family environments, and promoting
community-based programmes should be facilitated.
The international recommendations, standards which are set out in the international conventions need
to be adopted and adapted accordingly and should incorporated into the domestic framework.
It is recommended that awareness needs to be increased among the law enforcement authorities,
prosecutors, and other relevant parties in relation to the international standards of juvenile justice andalso those parties need to be trained well to handle the challenges and other issues that involve minors.
Need to have a uniform definition of “child”.
A provision should be inserted into the legislation barring the arrest of juveniles in order to fall in linewith the international instruments.
More juvenile courts should have to be established as we have only two currently.  We should at least
have one juvenile court for each province. Otherwise, the cases should have to be referred tomagistrate’s courts which will sit as a juvenile court.
The name given to the court should have to be replaced with a name like “family court” like in Japanor “court of care”.
Need to maintain a comprehensive register for childcare institutions.
Recommendations should be made in order for the investigating officers & the certified schools to use
the “Risk and need assessment tool”. A uniform tool for each and every delinquent will not do any goodfor the offenders who need special treatment.
Proper reintegration systems such as halfway houses need to be established.  This recommendation
will also take time as it needs financial support.
Should have to guide the relevant authorities (i.e. department of probation/ department of prisons) tomaintain a national statistics system which can illustrate details of juvenile offenders.
Awareness programmes should have to be conducted island wide after identifying the risk factors inorder to prevent juvenile delinquency as prevention is better than cure.
Need to promote diversion and alternative solutions such as mediation boards and family conferencing
in order to prevent the matters going into the judicial system.

Appendix A
CRC		
CRPOS		CYPO		
DPCCS		
PC			
PO			
POA		
YOSTA

Convention on the Rights of the Child
Child Rights Promotion Officers
Children and Young Persons Ordinance
Department of Probation and Child Care Services
Penal CodeProbation Officer
Probation of Offenders Act
Youthful Offenders (Training School) Act

45

REPORT OF THE COURSE
The 179th International Training Course
on Management of Correctional Facilities and Rehabilitation of Offenders (Online)“Juvenile Justice and Beyond – Effective Measures for the Rehabilitation of Juveniles in Conflict with the
Law and Young Adult Offenders”
1. 	Duration and Participants• From 6 to 29 September 2022
• 24 overseas participants from 16 countries
2. 	Programme Overview
Juveniles are socially and psychologically immature, and they are susceptible to stress and trauma. On
the other hand, juveniles are often more responsive to efforts at rehabilitation and reintegration withappropriate intervention and support. Hence, it is important for correctional services to promote well-being
and personal development by providing appropriate measures and treatment, making use of the formative
period. In addition, this approach should also be extended to young adult offenders because cognitive functionchanges gradually; consequently, young adults are similar to juveniles in many respects.
In light of the above, this programme provided opportunities to share each country's practices anddiscuss effective institutional and community-based treatment and juvenile justice systems for juveniles inconflict with the law and young adult offenders.
3. Method of Training
This programme was exclusively conducted online due to the Covid-19 pandemic. In consideration of timedifferences between countries, the programme was conducted in two groups. Since the participants needed
to continue their professional and family duties during the programme, some lectures were recorded inadvance and broadcasted on-demand for their convenience, followed by live Q & A sessions with thelecturers.
4. The Content of the Programme(1) Lectures by Visiting Experts-

Ms. Hannah Tiefengraber
Associate Expert, United Nations Office on Drugs and Crime, Global Programme to End Violenceagainst Children“Juvenile Justice and Violence against Children in the Context of Counter-Terrorism and National
Security”-

Dr. Garner Clancey
Associate Professor, University of Sydney Law School“The Rehabilitation of Young Adult Offenders”(2) Lectures by Experts-

Mr. NASU Akihiro
Certified Clinical Psychologist, Research Officer, Centre for Evidence-Based Research, Correctional
Training Institute“Use of a Risk Assessment Tool for Juveniles and Evaluation of Programme Effectiveness”-

Mr. TACHIBANA Yoshinori
Family Court Investigating Officer, Tokyo Family Court, Tachikawa Branch“Investigation and Coordination by Family Court Investigating Officers
in Criminal Cases Involving Juveniles”

47

RESOURCE MATERIAL SERIES No. 115(3) Lectures by UNAFEI faculty members-

Professor NAKAYAMA Noboru“Overview of Juvenile Hearings in Japan”-

Professor MIYAGAWA Tsubura“International Standards and Norms for Juvenile Justice” and “Juvenile Institutional Corrections in
Japan

-

Professor OTSUKA Takeaki“Juvenile Community-based Corrections in Japan”(4) Individual Presentations
Participants shared the practices and the challenges in their respective jurisdictions regarding the themeof the programme through their individual presentations. All the presentations were recorded anduploaded online for reference by participants in the other group.
(5) Group Workshops (Case Study)
Participants were divided into four groups according to time zones. The participants discussed a fictionalcase of a juvenile offender and explored appropriate measures and treatment for the juvenile based onrisk assessment and best practices for rehabilitation and reintegration, which are the main topics of thistraining programme.
A 16-year-old male juvenile in the fictional case faced multiple problems in his family and educational
environment and, consequently, he assaulted his colleague. Based on on the facts of the case, the following
three topics were discussed: (i) assessment of the juvenile's risk of reoffending, (ii) treatment, educationand vocational training necessary for the juvenile, and (iii) improvement of the relationship between thejuvenile and his family and support for his family. The results of the discussion were presented by eachgroup.
Assessment of offenders is effective in measuring the risk of reoffending as well as in improving thetreatment of offenders. In this programme, there were several explanations on the importance of the risk
assessment, and each group discussed the risk of the juvenile in the fictional case, referring to theirknowledge gained from the lectures. The participants constructively discussed and developed bestpractices for each group although the systems and practices differ from country to country.
(6) Action Plans
At the end of the programme, each participant presented Action Plans based on the abovementioned
lectures, individual presentations, and group workshops. They identified the challenges in their countries
and proposed possible solutions based on what they learned from the lectures, presentations by the otherparticipants and discussions in the group workshops. It was obvious from the Action Plans presented by
the participants that everyone remarkably enhanced their understanding on juvenile justice and related
issues and was eager to put their plans into practice in their countries.
5. 	Feedback from the Participants
We received a lot of positive feedback from the participants. They commented that all the lectures, group
workshops and interactions with lecturers and participants were very useful. Relevant materials provided
prior to and during the programme (UN documents, research articles, publications and videos) were also
highly evaluated. Several participants commented that observation visits to facilities and agencies in Japan
would have contributed to enhance their understanding further.
6. 	Comments from the Programming Officer (Professor MIYAGAWA Tsubura)
In light of the plasticity of juveniles and young adults, the timely and appropriate intervention to help andprotect juveniles in conflict with the law and young adult offenders is a critical issue for the entire world. In
addition, as a problem that has emerged through lectures and the group workshops, it is also necessary toprovide their families support and to include the whole community in taking comprehensive approaches.
This is because the sound development of juveniles and young people is hindered by inappropriate
48

REPORT OF THE COURSE
environments, poverty, and organized crime and violent extremism.
Throughout the training period, the participants enthusiastically and actively participated in all thesessions. The final Action Plans were creative presentations from a wide viewpoint such as approaches tothe local community and the importance of capacity-building of staff. All the presentations were very
meaningful and substantial. I am sure that the participants will make the most of what they have learned
from the programme. Despite the inability to meet in person, it was worth providing the opportunity to learn
from each other online.

49PART THREERESOURCE MATERIAL SERIES
No. 115Work Product of the 24th UNAFEI UNCAC
Training Programme

UNAFEI

PARTICIPANTS’ PAPERSPETROBRAS: SETTLEMENT OF A FOREIGN BRIBERY CASE
AND IMPLICATIONS FOR ASSET RECOVERY
Aldo de Campos Costa*

I. CONTEXT
Petróleo Brasileiro SA, better known as Petrobras, is a Brazilian state-controlled energy company
headquartered in Rio de Janeiro, Brazil, that operates to refine, produce and distribute oil, oil products, gas,
biofuels and energy. The Brazilian government owns more than 50 per cent of Petrobras’s common shareswith voting rights.
From 2003 to April 2012, the company was embroiled in one of the largest corruption schemes everinvestigated and prosecuted by Parties to the OECD Anti-Bribery Convention.1 The corruption scandal
erupted in 2014 and involved corrupt dealings among companies and officials from Brazil as well as thosefrom other countries.
Petrobras engaged in a large-scale expansion of its infrastructure for producing oil and gas, a matter ofsignificant interest to investors. During this period, certain former senior executives of the company colluded
with its largest contractors and suppliers to inflate the cost of its infrastructure projects.
In return, the companies executing those projects paid billions of dollars in kickbacks that typicallyamounted to one to three per cent of the contract cost on a cartel-like rotating basis. Petrobras' senior
managers received these illegal payments and shared them with their political sponsors, who assisted themin securing their management positions within the company.2
The overcharges caused by the kickbacks resulted in an inflation of property, plant and equipment,
resulting in an overstatement of assets. Members of Petrobras Executive Board and Board of Directors also
engaged in other bribery plots with companies that sought to win contracts with Petrobras or obtain better
terms.
Billions of dollars were embezzled in this manner for the personal gain of the corrupt executives, as wellas to finance the electoral campaigns of high-level figures. Bribes paid by Petrobras executives moved
through bank accounts in the United States, Britain, Sweden, Switzerland and Uruguay.3 The extensive
investigation into the plot, known as operation “Car Wash”, has given rise to many separate and coordinatedforeign bribery enforcement actions.

*

Assistant Prosecutor to the Prosecutor General, Brazil’s Federal Prosecution Service. The opinions expressed herein are
the author's and do not necessarily reflect the views of Brazil’s Federal Prosecution Service.
1
OECD, Resolving Foreign Bribery Cases with Non-Trial Resolutions: Settlements and Non-Trial Agreements by Parties
to the Anti-Bribery Convention (2019), http://www.oecd.org/corruption/Resolving-Foreign-Bribery-Cases-with-Non-TrialResolutions.htm>, accessed Jan. 16, 2023.
2
Securities and Exchange Commission press release 2018-215, Petrobras Reaches Settlement with SEC for Misleading
Investors (Sept. 27, 2018), <https://www.sec.gov/news/press-release/2018-215>, accessed Jan. 21, 2023.
3
Pedro Fonseca and Marcelo Rochabrun, World's biggest oil traders paid bribes in Brazil scandal, Reuters (Dez. 5, 2018),<https://www.reuters.com/article/us-brazil-corruption-petrobras-idUSKBN1O41EC>, accessed Jan. 16, 2023.

53

RESOURCE MATERIAL SERIES No. 115

II. BACKGROUND
A. Petrobras Securities Class Action Settlement
As a result of the corrupt executives’ failure to implement Petrobras’s internal controls, their exploitationof deficiencies in those controls, and their submission of false certifications in connection with Petrobras’sinternal process for preparing its filings, the company made material misstatements and omissions in financial
statements that concealed from investors and regulators the massive bribery and bid-rigging scheme. The
ensuing scandal decreased Petrobras's share price by more than 80 per cent and its American Depository
Shares (ADS) by 78 per cent.4
As of December 2014, just months after the appearance of some of the first confessions, Petrobras ADS
investors on the New York Stock Exchange brought a class action against the company’s executives, its
auditor and security underwriter before the United States District Court for the Southern District of New
York5 under the Securities Exchange Act of 1934 and the Securities Act of 1933.6
According to the complaints, Petrobras had fabricated public statements and regulatory documents,
distorting the company's financial picture by unlawfully capitalizing payments to cartel members.7 It wasalleged that the plaintiffs misrepresented the company's financial controls and ethical practices concerning
its business and management.8
As of June 2018, the court approved the settlement for close to $2.95 billion that was reached in December
2017.9 In terms of class action settlements involving foreign issuers, it was the largest in a decade.10 Also, it
was the fifth largest settlement ever reached in a United States class action.11
B. Non-Prosecution Agreement with the SEC
The United States Department of Justice (DOJ) concluded an investigation into Petrobras’s violation of
the Books and Records Provision of the Foreign Corrupt Practices Act (FCPA) on 27 September 2018, after
Petrobras accepted a non-prosecution agreement. The DOJ announced that Petrobras had agreed to pay$853,000,000 in penalties. Based on the company’s full cooperation and remediation, the fine was reduced by
25 per cent off the lowest end of the applicable United States Sentencing Guidelines range.12
Under the non-prosecution agreement, the company's obligations to the United States would be complete
upon paying $85,320,000, equal to 10 per cent of the total criminal penalty, to the DOJ. The deal also stipulated
that Petrobras should pay another $85,320,000 to the Securities and Exchange Commission (“SEC”) as a civil
penalty and the remaining 80 per cent of the total criminal penalty, equal to $682,560,000, to Brazil under
their respective agreements. If the company did not pay to Brazil any part of the $682,560,000 in thetimeframe specified in the “agreement between Brazilian authorities and the company,” Petrobras would be
required to pay that amount to the United States Treasury, except that the DOJ would credit up to 50 per
4

Javier El-Hage, Shaking the Latin American Equilibrium: The Petrobras & Odebrecht Corruption Scandals (Nov. 4, 2019),
https://news.law.fordham.edu/jcfl/2019/11/04/shaking-the-latin-american-equilibrium-the-petrobras-odebrecht-corruptionscandals/#_edn27>, accessed Jan. 16, 2023. See also: Kevin M. LaCroix, Petrobras Securities Suit: Judge Rakoff Rejects
Company’s ‘Adverse Interest’ Argument; Rules Brazilian Investors Must Arbitrate Brazilian Securities Law Claims, The D&O
Diary (Aug. 2, 2015), <https://www.dandodiary.com/2015/08/articles/securities-litigation/petrobras-securities-suit-judgerakoff-rejects-companys-adverse-interest-argument-rules-brazilian-investors-must-arbitrate-brazilian-securities-law-claims/>,
accessed Jan. 16, 2023.
5
El-Hage, supra, note 4.
6
Ibid.
7
Ibid.
8
Ibid.
9
Cleary Gottlieb, Petrobras Granted Final Approval of Class Action Settlement (Jun. 25, 2018), <https://www.clearygottlieb.
com/news-and-insights/news-listing/petrobras-granted-final-approval-of-class-action-settlement>, accessed Jan. 16, 2023
10
Bloomberg, Pomerantz Recovery on Behalf of Petrobras Investors Reaches $3 Billion (Feb. 2, 2018), <https://www.
bloomberg.com/press-releases/2018-02-02/pomerantz-recovery-on-behalf-of-petrobras-investors-reaches-3-billion>, accessed
Jan. 16, 2023.
11
Ibid.
12
El-Hage, supra, note 4.

54

PARTICIPANTS’ PAPERS
cent of that amount paid to the SEC.
A non-prosecution agreement with the DOJ under which Petrobras accepts responsibility under UnitedStates criminal law for the acts of certain former Petrobras executives and officers that gave rise to violationsof books and records and internal controls provisions under Title 15 of the United States Code, Section 78m.
None of those individuals remain employed by or associated with the company. The agreement acknowledges
that, in addition to the misconduct described by the DOJ, the company was “victimized” by an embezzlement
scheme that included the participation of former executives and officers of Petrobras.
Still within the framework of the agreement, Petrobras would continue to cooperate with the DOJ in any
ongoing investigations and prosecutions relating to the conduct, including of individuals, to enhance its
compliance programme and to report to the DOJ on the implementation of its enhanced complianceprogramme. The DOJ said it reached this resolution based on several unique factors presented by this case,including that Petrobras is a Brazilian-owned company that “entered into a resolution with Brazilian
authorities” and is subject to oversight by Brazilian authorities, and that, in addition to the significant
misconduct engaged in by Petrobras, a few executives of the company engaged in the embezzlement schemethat victimized the company and its shareholders.
According to the DOJ, while Petrobras did not voluntarily disclose the conduct, it notified the governmentof its intent to cooperate fully and took all necessary corrective measures after being made aware of the
misconduct allegations. Petrobras's cooperation included, for example, conducting a thorough internal
investigation, proactively sharing in real-time facts discovered during the internal investigation and sharing
information that would not have been otherwise available to law enforcement authorities, making regular
factual presentations, facilitating interviews of and information from foreign witnesses, and voluntarilycollecting, analysing and organizing voluminous evidence and information in response to requests, includingtranslating key documents.
In addition, Petrobras reportedly took significant corrective measures, including replacing the company's
top executives and implementing governance reforms, as well as disciplining employees and ensuring thatthe company no longer employs or is affiliated with any of the individuals known to the company to be
implicated in the conduct at issue in the case.
C. Cease and Desist Order with the SEC
The same day the DOJ announced the non-prosecution agreement, the SEC also made public it had bothcharged and settled with Petrobras for misleading United States investors by overstating by $2.5 billion, thevalue of assets that were spent on bribes.13 Disgorgement and prejudgment interest totalling $933,473,797
were to be paid by the company to the SEC after approval by the United States District Court for theSouthern District of New York, offset by any payments made to the class action settlement fund of $2.95
billion.14
As reported by the SEC, Petrobras raised billions of dollars through its United States shares traded on
the New York Stock Exchange. At the same time, the members of its executive board and board of directors
cooked the books to conceal the massive, undisclosed bribery and corruption scheme from investors andregulators. Shortly, Petrobras’s financial statements failed to disclose truthful information about its operations,misguiding American investors.15
The agreement with the SEC resolved allegations that former Petrobras executives committed violationsof specific provisions of the Securities Act of 1933, as well as of the books and records and internal controls
and false filings provisions of the Securities Exchange Act of 1934. The company admitted making
misstatements and omissions in SEC filings and documents related to a 2010 global IPO of equity securities,
none of which involved intent. SEC agreement limited company admissions to details related to DOJ
settlement.

13

SEC press release 2018-215, supra, note 2.
El-Hage, supra, note 4.
15
SEC press release 2018-215, supra, note 2.
14

55

RESOURCE MATERIAL SERIES No. 115
Nevertheless, in a file submitted to the SEC on 27 September 2018, the company presented itself as a
victim of the embezzlement scheme. It announced that it had already recovered approximately $449 million
in restitution. Petrobras further stated that the settlement did not constitute an admission of wrongdoing andwould “continue to pursue all available legal remedies from culpable companies and individuals.”16
D. Consent Agreement with Brazilian Prosecutors
Petrobras said it would sign a “consent agreement” with the Brazilian Federal Prosecution Service in thesame file submitted to the SEC.17 This deal should provide that the sum of $682,560,000 of the non-prosecutionagreement signed with the DOJ had to be deposited by Petrobras into a “special fund” in Brazil to be usedin “strict accordance with the terms and conditions of the consent agreement, including for “various socialand educational programs to promote transparency, citizenship and compliance in the public sector.”
This consent agreement was signed on 23 January 2019, with federal prosecutors involved in the Car
Wash operation in Curitiba, Brazil.18 Petrobras assumed the following obligations in the agreement: (a) tomaintain a compliance programme, as well as periodically review them in order to attest to their effectiveness;and (b) to transfer the amount of $682,560,000 to an account linked to a Federal Court in Curitiba within 30
days from the date of ratification of the agreement.
Section 2.4 of the consent agreement stated that 50 per cent of the $682,560,000 would be used to set up
an endowment fund, so the proceeds would be used for “projects, initiatives and institutional development ofentities and networks of reputable entities [...] that strengthen the Brazilian society's fight against corruption.”
The administration of this fund would be provided by an entity to be constituted within a maximum periodof 18 months after the ratification of the agreement as a private foundation, and it would have representativesof the operation “Car Wash” in its decision-making body.
The other 50 per cent, per Section 2.5 of the agreement, would satisfy eventual convictions or agreementswith shareholders who invested in the Brazilian stock market and filed a class action until 8 October 2017.
The amount would remain deposited in an interest-bearing judicial account. After two years, monetary
additions and interest would be used to establish the private foundation referred to in Section 2.4.
The federal judge who ratified the deal on January 25 said that it was essential to put some of the money
into a foundation in the form of an “endowment” intended to “foster the implementation of an anti-corruption
program” since “public investment in the implementation of anti-corruption measures is notoriously scarceand is generally subject to budgetary constraints.”
E. Outcome
The content of the consent agreement signed between Petrobras and the prosecutors in charge of the
Car Wash corruption investigation was harshly criticized for misrepresenting the non-prosecution agreement
between the oil company and the DOJ, which only provided the credit of the penalty in favour of Brazil,
without conditioning the creation of a legal entity under private law and without allocating this amount tospecific activities.
It was also promptly questioned by the Prosecutor General,19 who stated that the ratification of theagreement conferred upon federal prosecutors a function and obligations that were beyond the constitutional
limits of their assignments,20 involving a concentration of authority between the activity of investigation andlitigation and the execution of a billionaire budget, with revenues derived from an international agreement
16

Petrobras press release, Petrobras Reaches Coordinated Resolutions with Authorities in the United States and Agreement
to Remit Bulk of Associated Payments to Brazil (Sept. 27, 2018), <https://petrobras.com.br/en/news/petrobras-reachescoordinated-resolutions-with-authorities-in-the-united-states-and-agreement-to-remit-bulk-of-associated-payments-to-brazil.
htm>, accessed Jan. 16, 2023.
17
Ibid.
18
“Consent agreement” available at <https://www.mpf.mp.br/pr/sala-de-imprensa/docs/acordo-fundo-petrobras/view>,
accessed Jan. 16, 2023.
19
Docket available at <http://portal.stf.jus.br/processos/detalhe.asp?incidente=5650140>, accessed Jan. 16, 2023.
20
Prosecutor General’s motion available at <https://www.conjur.com.br/dl/dodge-vista-acao-stf-fundo-bilionario.pdf>, accessed
Jan. 16, 2023.

56

PARTICIPANTS’ PAPERS
to which they are neither party nor interested.
As mentioned by the Prosecutor General, the clauses of the agreement revealed how certain members of
the task force assumed administrative and financial commitments and spoke for the institution without thepower to do so, only to undertake all steps in the process of establishing a private foundation, and managing
its resources.
The House of Representatives and a few political parties also expressed concern about the consent
agreement, but from a different perspective. A more in-depth review of what is set out in the non-prosecutionagreement shows that at no point was it determined that the $682,560,000 should be processed by prosecutors
on the Car Wash team. The agreements require that the amount be handed over to Brazilian authorities.
According to the DOJ agreement, the expression “amount the Company pays to Brazil” implies, at thelevel of the Brazilian political-administrative organization, necessarily, the Federal Union. It is, therefore,
evident that only in favour of the Brazilian National Treasury could the deposit of the amount corresponding
to 80 per cent of the total criminal penalty stipulated in the non-prosecution agreement have been validly
made.
It was also pointed out that the Federal Court in Curitiba did not have jurisdiction over the use of publicfunds. Only the Federal Union, through the constitutional body – the National Congress – could define how
government revenues are to be applied following budgetary principles. To avoid them coming into play, thePetrobras agreement with federal prosecutors has used an instrument defined in Brazilian law as an exception
to the regulation, which states that revenue earned by the Federal Union must be collected in a single
treasury account: a fund. However, the attempt to outlaw Congress failed because the funds made available
for the constitution of the private foundation could only be constituted by legal authorization under Brazilianlaw, which did not happen.
Based on these reasons, on 19 March 2019, the Brazilian Supreme Court granted a stay that did not allow
the entry into force of the consent agreement.21 A few months later, on 17 September 2019, the court
declared the deal void. At first, the assets were supposed to be used to protect the Amazon Rainforest andfor primary education, but in 2020, most went towards fighting the Covid-19 pandemic.
The provision to set aside half of the amount deposited by Petrobras for potential payments to theminority shareholders of the company itself was also deemed unlawful, as follows: (a) the funds would belong
to the Federal Union rather than to Petrobras; (b) the satisfaction of Petrobras’s liabilities would have been
“explicitly prohibited” in the agreements signed by the company with the U. S. authorities; (c) the minority
shareholders are to “consort with Petrobras in enjoying the burdens and bonuses of the business activity,”
otherwise the company would suffer excessive damage, either because the transit of values could “characterizea co-mingling of assets,” either because Petrobras “had also fallen victim to offenses investigated in Brazil
and abroad.”22

III. CHALLENGES
One of the most controversial developments regarding the recovered assets in Operation “Car Wash” isthe consent agreement held between the Federal Prosecution Service and Petrobras, according to which alarge sum of the recovered money that stemmed from agreements with American authorities regarding
FCPA violations would be destined to an anti-corruption private foundation to be administered by federal
prosecutors.23 It is a study case that presents intriguing challenges to investigators, prosecutors, and courts,
21

Ruling available at <https://www.migalhas.com.br/quentes/340190/stf-proibe-que-mp-defina-destino-de-valores-decondenacoes-e-acordos>, accessed 16 Jan. 2023.
22
Ruling available at <https://www.migalhas.com.br/quentes/326997/moraes-destina-recursos-recuperados-da-lava-jato-paracombate-a-covid-19>, accessed 16 Jan. 2023.
23João Daniel Rassi, Emerson Soares Mendes and Pedro Luís de Almeida Camargo, The Asset Tracing and Recovery Review:
Brazil. The Laws Review (Oct. 17, 2021), <https://thelawreviews.co.uk/title/the-asset-tracing-and-recovery-review/brazil>,57

RESOURCE MATERIAL SERIES No. 115
as summarized below.
A. Defining “Legitimate Owners” and “Victims”
The question of who is or should be considered a victim of transnational corruption is not only essential
but also complex. The international framework provided by the United Nations Convention against Corruption(UNCAC) encourages countries to seek restitution for losses (Art. 35), proactively share information (Art. 56),
and repatriate proceeds of corruption offenses (Art. 57), returning such property to its prior “legitimate
owners” or compensating the “victims” of the crime, but do not define these terms. Petrobras is a mixed joint
stock corporation whose majority shareholder is the Brazilian state. It provides an example of a company
associated with a settlement of a foreign bribery case where the money was not returned to its stakeholders,
who were the most directly impacted by the practice.
B. Legal Framework
Three aspects should be taken into consideration in discussing legal frameworks of settlements: whether
the offender can be held liable under criminal, civil, or administrative law or some combination of the above(form of the liability); whether the court is involved and to what extent the court will review and approve
the settlement (judicial oversight) and whether and to what extent the content and terms of the settlements
are public (transparency of the settlement).24 The Petrobras case failed to anticipate the relevant authorities
who should play a role in the “agreement between Brazilian authorities and the company,” as well as theextent of judicial involvement in this settlement. The competent authorities also only learned of the agreement
once it was concluded.
C. Binding on Third Parties
A foreign bribe settlement should have legal effects only between its parties (inter partes). While theparties may agree for the benefit of a third party, they may never provide for stipulations to the detrimentof a third party that is not a party to the agreement (res inter alios acta alteri non nocet). For such stipulations
to be binding on that third party, that party must become a party to the agreement which contains thesestipulations. As seen in the Petrobras case, the obligations set out in the non-prosecution agreement werebinding on a foreign prosecuting authority that was not a party to the agreement.
D. Excessive Discretionary Power of Prosecutors
Despite their potential appeal, settlements in foreign bribery cases raise specific questions. For example,
the power of the prosecutors in the Petrobras case was largely unchecked.25 For example, the agreements
concluded with Petrobras gave the DOJ, and indirectly the Brazilian prosecution authorities, a broader
discretionary power to choose the form of redress they would have if the case proceeded to a fair trial. Theirmonetary sanctions choices, for example, had a direct impact on the designation of the beneficiary of theassets.26 Confiscated or disgorged assets representing crime proceeds could more directly fit UNCAC’s
description of recoverable assets than other forms of monetary sanctions.27
E. Reparation to Third Parties
Several countries have used settlements to conclude transnational corruption cases. In some cases, suchas the Alstom affair and the Mercator/James Giffen case,28 the settlement has included fines and reparations
to be paid to a charitable or a developmental institution. The Petrobras case raises an interesting issue: inwhich circumstances an endowment to a nongovernmental organization whose purpose is to fight corruption
may be identified as an appropriate vehicle through which a corrupt company can make amends to countries
whose officials it bribed?

accessed Jan. 16, 2023.
24
Jacinta Anyango Oduor, Francisca M. U. Fernando, Agustin Flah, Dorothee Gottwald, Jeanne M. Hauch, Marianne Mathias,
Ji Won Park and Oliver Stolpe. Left out of the Bargain: Settlements in Foreign Bribery Cases and Implications for Asset
Recovery (Washington, DC: World Bank, 2014), p. 21.
25
Ibid., p. 48.
26
See Oduor, supra, p. 85.
27
Ibid., p. 85.
28
See Oduor, supra, p. 95.

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PARTICIPANTS’ PAPERS
F. Implications for Asset Recovery
In the context of settlements, the nature of various monetary sanctions may determine who has alegitimate claim under UNCAC. Depending on the legal system under which sanctions are imposed, sanctions
may be “paid” through various methods, including compensation, confiscation, disgorgement, fines, reparations,and restitution. In the Petrobras case, the United States allowed 80 per cent of the money associated with
the DOJ agreement to be remitted to Brazil. In other words, reparations, in the form of ex gratia payment,
made up nearly all the monetary sanctions. While Brazil was ultimately not awarded any damages upon thestatement of facts of the agreement,29 one could argue that since the crime of corruption was committed
against Petrobras or the “collective interest” rather than specifically against the Brazilian state, Brazil could
not contend that it had suffered damage as a result of a crime and could not thus make a legitimate claim
for restitution.30

IV. CONCLUSION
Although the money associated with the agreements that Petrobras concluded with the DOJ and the SEC
was not returned to its stakeholders, there is a clear tendency in all jurisdictions, regardless of their common
law or civil law traditions, as well as in developed and developing countries, to resolve many foreign bribery
cases through settlements.
Nevertheless, there is a limited understanding of how these settlements are agreed upon and implemented,
which may create specific challenges for asset recovery. Most agreements fail to demonstrate a consistent
approach to remediation, and law enforcement agencies need more of a conceptual or practical framework
to guide the provision of corrective measures.31
The Petrobras case not only marks the beginning of a new front of concern and litigation for international
corporations and individuals implicated in allegations of corruption but also provides several lessons for theinternational community to consider, as follows:
A. Allocation of Settlement Amounts
As far-reaching settlements become more common, the question of who should receive the proceeds hascome to the forefront. In order to allocate the various settlement amounts, negotiators need to learn todifferentiate the primary forms of monetary sanctions that can be part of an agreement. Some of them, suchas restitution and reparations, will usually be paid to aggrieved parties (or “victims”), and others, such asfines, will usually be paid to the state.32
B. Limit of Authority
The involvement of several authorities often gives rise to conflicting and competing demands. Responding
to requests from one authority may be perceived by another as a threat to its investigation or even a breachof its laws. Thus, where more than one authority may be involved, negotiators should know each authority's
power to settle the case. It is important to keep expectations and negotiations within this authority limit.33

29

Many Brazilians view Petrobras and the Brazilian people as victims of the systematic embezzlement and graft scheme.
See Megan Zwiebel, State-Owned Entity, Victim and Perpetrator: The Special Case of Petrobras. Anti-Corruption Report (Oct.
31, 2018), < https://www.anti-corruption.com/2629686/stateowned-entity-victim-and-perpetrator-the-special-case-of-petrobras.
thtml>, accessed Jan. 16, 2023. See also Roger Hamilton-Martin, Petrobras: Perpetrator or victim of corruption? (Feb. 12, 2016),<https://globalinvestigationsreview.com/just-anti-corruption/article/petrobras-perpetrator-or-victim-of-corruption>, accessed
Jan. 16, 2023.
30
Ibid., p. 89.
31
Sam Hickey, Remediation in Foreign Bribery Settlements: The Foundations of a New Approach, Chicago Journal ofInternational Law, Vol. 21, No. 2 (2021), <https://chicagounbound.uchicago.edu/cjil/vol21/iss2/5>, accessed Jan. 16, 2023.
32
Rebecca Hughes Parker, The View from a Brazilian Prosecutor. Anti-Corruption Report (Jan. 10, 2018), < https://www.
anti-corruption.com/2567211/the-view-from-a-brazilian-prosecutor.thtml >, accessed Jan. 16, 2023.
33
Ephraim Wernick and Pete Thomas, How Companies Can Respond to the Boom in FCPA Enforcement Fueled byInternational Cooperation, Anti-Corruption Report (Oct. 30, 2019), <https://www.anti-corruption.com/4129106/how-companiescan-respond-to-the-boom-in-fcpa-enforcement-fueled-by-international-cooperation.thtml>, accessed Jan. 16, 2023.

59

RESOURCE MATERIAL SERIES No. 115
C. Overlapping Authorities
This increased international cooperation complicates how companies self-report, and various overlapping
authorities make navigating settlement even more difficult.34 Therefore, coordination with foreign andnational authorities is critical to minimizing the likelihood of receiving duplicate sanctions before entering a
globally coordinated resolution. The same conduct can lead to different penalties in different jurisdictions.35
D. Negotiation Preparedness
Negotiating as a government representative requires a great deal of work prior to negotiation to ensurethat negotiators have the support of all interested parties. It is possible for a third party with an actual or
potential interest in the transaction to intervene in the process of negotiation or to protect its interests lateron.
E. Agreement Language
The language used in international settlement cases may be inapplicable to local conditions or situations
being discussed. Hence, an inflexible insistence on their terms may lead to unsatisfactory results for bothparties. To avoid future disputes, negotiators should carefully review agreements to ensure they are
consistent with the agreement they seek.36
F. Need for Mandate
To negotiate on behalf of other individuals or organizations, agents need a mandate from these individuals
and authorization to act on their behalf. That mandate might include the legal authority to sign an agreement.
However, in most cases, this will consist of negotiating instructions regarding the kinds of agreements thatcan be considered and tentatively accepted during a negotiation.37
G. Fulfilment of UNCAC’s Requirements
Settlement-based enforcement provides flexibility to reward offenders' self-reporting and cooperation andto reach more timely findings in complex cases.38 However, this should not represent an acceptable cost ofcorrupt business dealings or encourage recidivism.39 UNCAC demands that sanctions be commensurate withthe seriousness of the corruption offence to avoid potentially adverse side effects,40 such as society receiving
less information about the wrongdoing, little opportunity to assess the sanction, and less reason to expect
sanctions to deter corruption.41

34

Ibid.
Ibid.
36
Jeswald W. Salacuse, Seven Secrets for Negotiating with Government: How to Deal with Local, State, National, or Foreign
Governments--and Come out Ahead (New York: AMACOM/American Management Association, 2008), p. 130.
37
Ibid., p. 49.
38
Tina Søreide and Kasper Vagle, Settlements in corporate bribery cases: an illusion of choice? European Journal of Law andEconomics 53, 261–287 (2022), <https://doi.org/10.1007/s10657-022-09726>, accessed Jan. 16, 2023.
39
See Gillian Dell, Making Sure Settlements Deter Corruption. UNCA Coalition (Nov. 8, 2013), <https://uncaccoalition.org/
making-sure-settlements-deter-corruption/>, accessed Jan. 16, 2023. Regarding recidivism, see Sydney P. Freedberg, Karrie
Kehoe and Agustin Armendariz, “As US-style corporate leniency deals for bribery and corruption go global, repeat offenders
are on the rise,” ICIJ (Dec. 13, 2022), <https://www.icij.org/investigations/ericsson-list/as-us-style-corporate-leniency-deals-forbribery-and-corruption-go-global-repeat-offenders-are-on-the-rise/>, accessed Jan. 16, 2023.
40
See Elly Proudlock and Christopher David, Bribery and corruption: negotiated settlements in a global enforcement
environment, Practical Law (Oct. 1, 2014), <https://content.next.westlaw.com/practical-law/document/I0422c5f1611d11e498db
8b09b4f043e0/Bribery-and-corruption-negotiated-settlements-in-a-global-enforcement-environment/>, accessed Jan. 16, 2023.
41
See Søreide and Vagle, supra, p. 261.
35

60

BEST PRACTICES IN KENYA ON INVESTIGATION AND PROSECUTION
OF CORRUPTION AND RELATED OFFENCES, ASSET RECOVERY AND
INTERNATIONAL COOPERATION
Judy Bliss Thuguri*

I. INTRODUCTION
The promulgation of the Constitution of Kenya 2010 (the Constitution) was the beginning of a new dawnin Kenya as it established independent institutions and commissions crucial in the fight against corruption
and economic crimes.
The Constitution binds all persons and State Organs in government1 and incorporates international laws
through adoption of the general rules of international law, treaties or conventions ratified as part of the law
in Kenya.2 For this reason, the United Nations Convention against Corruption (UNCAC) ratified by Kenya on
9 December 20033 forms part of the laws of Kenya by virtue of the Constitution. Other international laws
ratified by Kenya relevant in the fight against corruption are the United Nations Convention Against
Transnational Organized Crime ratified on 5 June 20054 and the African Union Convention on Prevention
and Combating Corruption (AUCPCC) ratified on 7 March 2007,5 among others. In addition to the Constitutional
provisions, there are legal frameworks in Kenya that provided for the standards, measures and rules to be
implemented in the fight against corruption.
This paper will examine these legal frameworks, best practices and challenges faced in Kenya in thecourse of investigation and prosecution of corruption cases and more so in identifying, tracing, freezing,seizing, confiscation and recovery of proceeds of crime.

II. THE OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS (ODPP)The ODPP is an independent office established under the Constitution mandated to exercise State powers
of prosecution. The Office is headed by the Director of Public Prosecutions (DPP) who under the Constitution
exercises state power of prosecution and may:6
i. Direct the Inspector-General of the National Police Service to investigate any offence or allegation of
criminal conduct, which the Inspector General is obligated to comply with.
ii. Institute and undertake any criminal proceedings against any person before any court (other than acourt martial) in respect to any offence allegedly committed.
iii. Take over and continue any criminal proceedings instituted against any person before any court(other than a court martial) that is instituted by another person or authority.

*

Principal Prosecution Counsel, Office of the Director of Public Prosecutions, Kenya.
Constitution of Kenya 2010, Article 2(1).
2Ibid, Article 2(5) and (6).
3
http://kenyalaw.org/treaties/treaties/129/United-Nations-Convention-against-Corruption
4
http://kenyalaw.org/treaties/treaties/142/United-Nations-Convention-against-Transnational-Organized5
http://kenyalaw.org/treaties/treaties/38/African-Union-Convention-on-Preventing-and-Combating
6
The Constitution of Kenya 2010, Article 157.
1

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RESOURCE MATERIAL SERIES No. 115
iv. Discontinue with leave of court, at any stage before judgment is delivered, any criminal proceeding
instituted or taken over by the DPP.
Other powers and functions of the DPP pursuant to Article 157 of the Constitution are to:7
i. Promote appropriate standards of practice by public prosecutors, assistant prosecutors, and any otherperson exercising prosecutorial authority under the ODPP Act.
ii. Implement an effective prosecution mechanism so as to maintain the rule of law and contribute to fairand equitable criminal justice and the effective protection of citizens against crime.
iii. Cooperate with the National Police Service, investigative agencies, the courts, the legal profession andother Government agencies or institutions so as to ensure the fairness and effectiveness of publicprosecutions.
iv. Set the qualification for the appointment of prosecutors.
v. Review a decision to prosecute, or not to prosecute, any criminal offence.
vi. Advise the State on all matters relating to the administration of criminal justice; andvii. Do all such other things as are necessary or incidental to the performance of its functions under theConstitution, the ODPP Act or any other written law.
The DPP in exercise of his or her powers and function shall not require the consent of any person or
authority in commencing criminal proceedings or be under the direction or control of any person or authority.8
A. Department of Economic, Organized and International Crimes
The ODPP is structured into six departments that specialize in different areas for effective service
delivery. The Department of Economic, Organized and International Crimes is mandated to prosecute cases
related to economic, international and emerging crimes. The Department has the following thematic divisions:i. Anti-Corruption and Economic Crimes Division
ii. Anti-Money Laundering and Asset Forfeiture Divisioniii. Banking and Financial Crimes Division
iv. International, Transnational and Organized Crimes Division
v. Counter Terrorism Division
vi. Land and Environment Division
The mandate of the Department includes:i. To prosecute all corruption and economic crimes investigated by the Ethics and Anti-Corruption
Commission (EACC) and the Directorate of Criminal Investigations (DCI).
ii. To advise and give directions to the EACC and the DCI over the investigations of corruption andrelated offences.
iii. To prepare and submit to the National Assembly of Kenya an annual anti-corruption report as provided
under section 37 of the Anti-Corruption and Economic Crimes Act.
7
8

Office of the Director of Public Prosecutions Act 2013, Section 5(4).
The Constitution of Kenya 2010, Article 157 (10).

62PARTICIPANTS’ PAPERS

iv. To provide legal and policy guidelines to other agencies on Anti-Corruption and other related matters.
v. To undertake research and make recommendations on the status of policies and laws relevant tocorruption regarding economic crimes.

III. INVESTIGATIVE AGENCIES ON ANTI-CORRUPTION, MONEY-LAUNDERING
AND PROCEEDS OF CRIME
The main investigative agencies in Kenya that conduct investigations into these cases are:
A. Ethics and Anti-Corruption Commission (EACC)
The EACC is established under the Ethics and Anti-Corruption Commission9 pursuant to Article 79 of
the Constitution which is mandated among other functions to develop a code of ethics, promote standards
and best practices in integrity and anti-corruption for State officers, investigate and recommend to the DPPcases of acts of corruption, bribery, economic crimes or violation of codes of ethics prescribed in law, andinstitute and conduct proceedings in court for recovery or protection of public property, or for freezing or
confiscation of proceeds of crime related to corruption.
B. Directorate of Criminal Investigations (DCI)
The DCI is established under the National Police Service of Kenya10 mandated to among other functions
undertake investigations on serious crimes including homicide, narcotic crimes, human trafficking, moneylaundering, terrorism, economic crimes, piracy, organized crime and cybercrime among others.11
Following the establishment of the EACC in 2011, questions were raised on whether the DCI caninvestigate anti-corruption cases, which led to various petitions being instituted in the High Court challenging
investigations conducted by the DCI on anti-corruption cases. This question has since been settled withcourts finding that investigation carried out by the DCI and recommendations made thereby to the DPPcannot be faulted on account of not having been conducted by the EACC as the DCI are also mandated toinvestigated economic crimes under section 35(b).12
C. Asset Recovery Agency (ARA)The Asset Recovery Agency13 is mandated to conduct investigations into suspected cases of moneylaundering, confiscate and conduct criminal and civil forfeiture of proceeds of crime or unexplained assets
suspected to have been acquired through crime.

IV. LEGAL FRAMEWORK GOVERNING ANTI-CORRUPTION AND
MONEY-LAUNDERING IN KENYA
A. The Proceeds of Crime and Anti-Money Laundering Act (POCMLA)14
The Act was enacted in 2009 to provide for offences of money-laundering and the identification, tracing,
freezing, seizing and confiscation of proceeds of crime. Section 2 of the Act defines proceeds of crime as:

9

Act No. 22 of 2011.
National Police Service Act No. 11A of 2011 of the Laws of Kenya, Section 28.
11Ibid, section 35(b).
12Michael Sistu Mwaura Kamau & 12 others v Ethics and Anti-Corruption Commission & 4 others [2016] eKLR; Philomena
Mbete Mwilu v Director of Public Prosecutions & 3 others; Stanley Muluvi Kiima.  (Interested Party); International Commissionof Jurists Kenya Chapter (Amicus Curiae) [2019] eKLR;Daniel Ogwoka Manduku v Director of Public Prosecutions & 2others [2019] eKLR.
13
Proceeds of Crime and Money Laundering Act No. 9 of 2009 of the Laws of Kenya, Section 53.
14
Act No. 9 of 2009.
10

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RESOURCE MATERIAL SERIES No. 115
Any property or economic advantage derived or realized, directly or indirectly, as a result of orin connection with an offence irrespective of the identity of the offender and includes, on a
proportional basis, property into which any property derived or realized directly from the offence
was later successively converted, transformed or intermingled, as well as income, capital or othereconomic gains or benefits derived or realized from such property from the time the offence wascommitted.
It further defines property to mean:
all monetary instruments and all other real or personal property of every description, including
things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere,
whether tangible or intangible, and includes an interest in any such property and any such legal
documents or instruments evidencing title to or interest in such property.
The common predicate offences in this Act are provided for under Section 3, 4, 5 and 7 of the Act, which
provides for the offences of money-laundering, acquisition, possession or use of proceeds of crime, failure toreport suspicious transactions related to proceeds of crime and financial promotion of an offence. The Act
covers a broad range of offences encountered in Kenya and provides for prosecution of financial institutions
that failing to report suspicious transactions and persons who act as intermediaries in transporting,transmitting or transferring property suspected to be proceeds of crime.
B. Anti-Corruption and Economic Crimes Act (ACECA)15
The Act was enacted in 2003 with the aim of providing for the prevention, investigations and offences on
corruption, economic crimes and other related offences. The Act defines corruption as offences amounting tobid rigging, dealing with suspect property, bribery, fraud, embezzlement or misappropriation of public funds,
abuse of office, breach of trust or offences of dishonesty connected to tax, rate or impost levied under any
Act.16
Common predicate offences encountered in Kenya are provided for under section 42, 45, 46, 47, 47A of theAct, which provides for offences of conspiracy to commit offences involving corruption or economic crimes,
conflict of interest, wilful failure to comply with applicable procedures of law, fraudulent acquisition of public
property, abuse of office and dealing with suspect property.
C. Bribery Act17
This Act provides for the prevention, investigation and offences related to bribery. The most common
offences under this Act are provided for under section 5 and 6 of the Act which provides for offences on
giving and receiving of a bribe. The Act further provides for measures on protection of whistle-blowers
which cautions against intimidation or harassment of persons who provide information to law enforcement
institutions or testimony in court. Further, it provides for the offences against persons who harass or
intimidate whistle-blowers or witnesses in regard to offences under the Act or persons who disclose
information of informants and or witnesses causing the said informants or witnesses to be harassed or
intimidated.18
D. Public Procurement and Asset Disposal Act19
The Act provides for the procedures of public procurement and asset disposal for public entities. This
Act plays a crucial role in identification of offences arising from breach of procurement laws by public
officers.

15

Act No. 9 of 2009 of the Laws of Kenya.
Ibid, section 2.
17
Act No. 47 of 2016 of the Laws of Kenya.
18
Ibid, section 21.
19
Act No. 33 of 2015 of the Laws of Kenya.
1664PARTICIPANTS’ PAPERS

V. INVESTIGATIONS INTO THE IDENTIFICATION TRACING FREEZING,SEIZURE AND CONFISCATION OF PROCEEDS OF CORRUPTION IN KENYA
A. Identifying and Tracing Proceeds
1. Reporting of Suspicious Financial Transactions
As provided under Article 14 of UNCAC, Kenya has enacted legislation to enhance financial reporting of
suspicious transactions as a measure to detect and prevent money-laundering. The Financial Report Centre(FRC) is mandated to assist in the identification of proceeds of crime and money-laundering.20 FRC receives,
analyses and interprets reports of suspicious transactions made by reporting institutions and upon review of
the reports, if the Director-General finds that there are reasonable grounds to suspect that the transactions
involve proceeds of crime or money-laundering, the Director-General refers the matter to the investigative
agencies for investigation.21
Reporting institutions such as banks and designated non-financial businesses are required by law toreport all suspicious transactions to FRC. Currently, it is a mandatory requirement for all financial institutions
to report any cash transactions of Kenya shillings (Ksh.) 1,000,000 and above and provide supporting evidence
on the nature and reasons of the transactions by their respective clients.22 Failure to report suspicioustransactions by financial institutions or natural persons required by law to report such transactions is anoffence in Kenya punishable to an imprisonment of a fine not exceeding ten million Kenya shillings or theamount of the value of the property involved in the offence, or for a natural person, imprisonment for a term
not exceeding seven years or a fine not exceeding two million, five hundred thousand shillings or both.23
A case study on reporting of suspicious transactions in Kenya is the case of Family Bank Limited & 2
Others -vs- Director of Public Prosecutions & 2 Others.24 A brief background of this case was that sometime
between 2014 to 2016 large sums of money estimated at Ksh. 791,385,000 were illegally paid from the
Ministry of Public Service, Youth and Gender Affairs State Department for Public Services and Youth tobank accounts operated by one Josephine Kabura, a sole proprietor of several companies to wit Reinforced
Concrete Technologies, Home Builders and Roof and All Trading held in Family Bank Limited.
Large cash withdrawals were then made by the said Josephine Kabura with no explanations for the large
cash transactions where Family Bank Limited failed to report these transactions. Upon investigations being
conducted by the DCI, the DPP was satisfied that Family Bank Limited contravened the reporting obligations
under section 44 of POCAMLA among others and was criminally liable for the offence of failure to reportsuspicious or unusual transactions or activities related to money-laundering or proceeds of crime contrary tosection 44(2) as read with section (5) and 16(2) of the POCAMLA. Recommendations were therefore made forcharges to be instituted against the responsible bank officials.
The Bank through a Constitutional Application No. 488 of 2016 sort for conservatory orders to prohibit
the DPP from prosecuting its officials for the stated offences. However, the high court dismissed the said
application where the bank filed an appeal against the said ruling. The appeal was subsequently dismissedby the Court of Appeal.
2. Acquiring and Analysing Objective Evidence
The ODPP by virtue of Article 157(4) of the Constitution and section 5(b) of the ODPP Act mentioned
above works closely with investigative agencies by either giving advice or conducting prosecution led
investigations. The role of the ODPP in the course of such investigations is to ensure that the evidence
acquired follows the money trail from its source to beneficiaries of the proceeds of crime. Secondly, the
ODPP ensures that the evidence acquired is admissible in court by meeting the evidentiary thresholdprovided in the Evidence Act on admissibility of electronic records25 and the Guidelines on the Decision to20

Proceeds of Crime and Anti-Money Laundering Act No.9 of 2009, section 21.
Ibid, section 24.
22
Ibid section 44.
23
Ibid section 5 as read together with section 16(2).
24[2018] eKLR.
25
Cap 80 of the Laws of Kenya, Section 106B.
21

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charge. The ODPP in analysing the evidence acquired applies the “follow the money approach” to ensure thateach layer on the movement of money from one point to the other is followed to identify all suspects andbeneficiaries of the proceeds of crime.
Investigative agencies are also equipped with experts specialized in different fields such as financial
analysis, ICT and forensic document examiners who identify and extract information relevant to the areasof investigations and prepare forensic reports. The ODPP also engages experts trained in various fields suchas fraud, finance and procurement to guide on areas of focus in cases of money-laundering and proceeds ofcrime to ensure that the Office prosecutes its cases effectively and efficiently with high chances of success.
3. Acquiring Suspect/Witness Statements
In Kenya, there is no legal framework in place on admissibility of evidence acquired through undercover
operations. The same, however, is information that is acquired through intelligence by the National Intelligence
Service (NIS) or the FRC, where upon review of the information, the intelligence services have reasons tobelieve that a crime has been committed, the same is forwarded to the investigative agencies for investigation.
The aim is to ensure that information acquired through intelligence is converted into evidence admissible incourt.
In Kenya, the law provides for the protection of informers whether from intelligence services or civilian.26
This is in tandem with the Constitution, which provides for protection of witnesses and enactment oflegislation providing for the protection, rights and welfare of victim of offences.27 In line with this requirement,
the Witness Protection Agency is established under section 3A of the Witness protection Act,28 whose
mandate is to provide protection to witnesses referred to them either by investigative agencies or the DPP.
This function is extended to protection of Victims under the Victim Protection Act.29
A case study relevant to protection of witnesses is in the case of H.E Hon. Mbuvi Gidion Kioko Mike
Sonko & Others -vs- DPP & Others. In this case, the ODPP in collaboration with the EACC and Witness
Protection Agency acquired orders to protect all witnesses including experts due to reports received on
threats and intimidations of witnesses most of whom were employees of the organization under investigation.
Aggrieved by this decision, Hon. Mike Mbuvi Gidion Kioko Mike Sonko filed an application before the High
Court for review of the witness protection orders.30 In the said application, the Applicant argued that thewitness protection orders interfered with his rights to a fair hearing guaranteed under Article 50 of theConstitution of Kenya. The High Court in its ruling dismissing the application held that:In determining the issues herein, the first issue of paramount importance is that of the position of
witness protection. Article 50 in its various sub-articles guarantees an accused person the right tofair hearing. At sub-article 2(c) and (d), the right to adequate time and facilities to prepare adefence, and the right to public trial before a court established under the constitution, which
seems to be the contested rights in this application are clearly anchored. At sub-article 8, theconstitution states, thus:‘This article does not prevent the exclusion of the press or other members of the
public from any proceedings if the exclusion is necessary, in a free and democraticsociety, to protect witnesses or vulnerable persons, morality public order or national
security.’
The deduction that I reach from all these are that whereas Article 50 of the Constitution
guarantees and declares the right to fair hearing for an accused person, the same article alsodeclares that the same right guaranteed may be limited where it is justifiable, for the protectionof witnesses, vulnerable persons, morality, public order or national security.
26

Anti-Corruption and Economic Crimes Act No. 3 of 2003 of the Laws of Kenya, section 65; Proceeds of Crime and Money
Laundering Act No. 9 of 2009 of the Laws of Kenya, Section 20; Bribery Act No. 47 of 2016 of the Laws of Kenya, section 21.
27
The Constitution of Kenya 2010, Article 50(8) and (9).
28
Act No. 16 of 2006 of the Law of Kenya.
29
Act No. 17 of 2014 of the Laws of Kenya.
30
High Court Anti-Corruption and Economic Crimes Miscellaneous Case No. 23 of 2020.

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However, in the case of Director of Public Prosecution -vs- The Chief Magistrate Court Milimani AntiCorruption Division & 18 Interested Parties31 the DPP sort for review of orders of the trial court directing
the DPP to supply a chronology of calling the witnesses accompanied by a list of documents that each
witness will be relying on to the defence 7 days in advance to the hearing and any change to be communicatedto the parties 3 days before the hearing.
The DPP in seeking review of these orders argued inter alia that the Learned Magistrate erred in law
by failing to consider that its duty not only lied in guaranteeing the rights of accused person to fair hearing
under Article 50 of the Constitution, but to also safeguard the rights of witnesses and victims under Article
50(9) of the Constitution on grounds that disclosing the order in which the witnesses would testify prior tothe hearing would put the witnesses at risk of intimidation or interference as the witnesses were not under
witness protection.
The court in its ruling, however, disagreed with the position of the DPP and found that the directions to
supply a “chronology of witnesses” was necessary in the circumstance of the case and that in regard to thesafety of the witnesses, the court was not persuaded that the directions shall expose them to danger.
The ODPP in developing its strategies for handling anti-corruption established the Victim and Witness
Facilitation Unit intended to facilitate costs incurred by witnesses scheduled to testify in court.
It is an offence to give false information to the FRC or an authorized officer punishable by imprisonment
for a term not exceeding two years or a fine not exceeding one million shillings or both.32 In addition, under
ACECA, it is an offence to obstruct or hinder, assault or threaten a person conducting investigations under
the act, deceive or knowingly mislead the commission, destroy, alter or conceal or remove documents,
records or evidence that is relevant to an investigation or make false accusation to the commission.  Such aperson is liable on conviction to a fine not exceeding Kenya shillings five hundred thousand shillings or to
imprisonment for a term not exceeding five years or both.33
In regard to plea bargaining, the same is provided for under section 137A-O of the Criminal Procedure
Code.34 In 2019 the ODPP launched the ODPP Plea Bargain Guidelines to guide prosecutors on the bestpractices and application of the plea bargaining provisions. In addition to plea bargaining, the ODPP also has
the Diversion Policy Guidelines also launched 2019.
Further, there is the Anti-Corruption and Economic Crimes (Amendment) Bill, 2021 that is currently
pending before the senate that seeks to amend the Anti-Corruption and Economic Crimes Act to provide forthe procedure of entering into deferred prosecution agreements. The same is targeted at dealing withoffences arising from corruption or economic offences which include offences under POCAMLA. If passed,
the same will allow the DPP to enter into Deferred Prosecution Agreement in considering prosecution ofalleged offences of corruption and economic crimes.
This provides alternatives to prosecution in regard to offences under POCAMLA and addresses thechallenges faced in identifying persons to be charged on behalf of artificial persons such as the financial
institutions. Two cases relating to plea bargaining are:(a) Republic vs Family Bank Limited and 7 Others35
The brief background as provided above is that Family Bank and its senior managers were charged
under the Proceeds of Crime and Anti-Money Laundering Act No. 9 of 2009, with several counts of failing toreport suspicious transactions and abetting money-laundering involving the National Youth Service
transactions. The matter was concluded under plea bargain where the Court recorded the plea agreement,
convicted them and fined Family Bank a total of Kshs. 64.5 million.
31

High Court Anti-Corruption and Economic Crimes Division Application No. E005 of 2021.
POCAMLA No. 9 of 2009 of the Laws of Kenya, section 10 as read with section 16.
33
ACECA No. 3 of 2003 of the Laws of Kenya, section 66(1) and (2).
34
Cap 75 of the Laws of Kenya.
35
Anti-Corruption Case No. 306 of 2016.
32

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RESOURCE MATERIAL SERIES No. 115(b) Republic vs Jackson Mbute Mbugua and 5 Others36
The accused persons were jointly charged with conspiracy to defraud the Government of L.R. No.
209/16441 which was allocated to the then City Council of Nairobi for use by Racecourse Primary School.
Prior to the hearing of the matter, the accused persons initiated a plea agreement negotiation with the DPP.
This resulted in an agreement to restore the parcel of land to the Government. At the time of conclusion ofthis case, the parcel of land was valued at KShs. 700 million.
The ODPP recognizes that corruption offences are complex in nature and in most instances, it becomesdifficult to conclude criminal cases instituted in court expeditiously due to the large number of witnesses,
accused persons and voluminous documents involved in proving the case. Secondly, in some instances, it isdifficult to have witnesses who are not tainted with acts of corruption making them possible suspects in thecase. In such cases, the ODPP considers the approach of “Using the small fish, to catch the big fish” in orderto strengthen the prosecution’s case and hold the most culpable to account.
Interestingly, section 5 of ACECA also gives the trial magistrates the power to obtain evidence from any
person either directly or indirectly involved in an offence and pardon such person on condition that he or she
makes full and true disclosure of the circumstances within his or her knowledge in relation to the offence.
This section, however, is yet to be actively utilized in corruption matters.
B. Freezing, Seizing and Confiscation of Proceeds of Crime and Money-Laundering and Asset Recovery
Section 53 of the POCAMLA established the Asset Recovery Agency that is mandated to handle criminal
forfeiture provided under Part VII and civil forfeiture provided under part VIII of the Act.
The difference between criminal and civil forfeiture is that criminal forfeiture proceedings are based oninvestigations and/or prosecutions of criminal offences that lead to acquisition of proceeds of crime ormoney-laundering. Upon conviction of a defendant on the predicate offence(s), the court convicting theaccused/defendant, upon application of the Attorney-General, the Asset Recovery Agency or on its own
motion, inquires into any benefit which the accused/defendant may have acquired through the offence or
criminal activity and if found that the accused/defendant benefited, the court in addition to any punishment
imposed makes a confiscation order.37
Prior to conviction and/or charging of suspects, the Agency may also apply for ex parte restraining
orders/preservation orders to preserve properties suspected to be proceeds of crime or money-laundering.
These orders are issued by court upon being satisfied that there are criminal investigations in regard to an
offence, or reason to believe that a person leads a criminal lifestyle and has benefited from his criminal
conduct.38
Civil forfeiture on the other hand provided for under section 81 to 99 of the POCAMLA deals with
unexplained assets. Unlike criminal forfeiture, which is anchored on predicate offences, civil forfeiture isbased on evidence that a person is in possession of assets that are not commensurate to his earning(unexplained assets). These proceeds are instituted by the Asset Recovery Agency in the High Court where
upon conclusion, the assets are confiscated if the court is convinced that the defendant failed to prove how
he or she acquired the assets.
Aside from the ARA, the EACC also has powers to investigate and commence forfeiture proceedings of
unexplained assets and apply for orders of preservation of suspect property.39 Civil Forfeiture proceeds,
therefore, provide for non-conviction-based confiscation of proceeds of crime.
Proceedings under civil forfeiture and criminal forfeiture are considered to be civil in nature and, therefore,
unlike criminal proceeds, the burden of proof is on a balance of probability.40

36

Anti-Corruption Case No. 2 of 2012.
POCAMLA, Section 61.
38
Ibid, section 68.
39
ACECA No.3 of 2003, Section 55 and 56.
40
POCAMLA No. 9 of 2009, Section 56(1) and 81(1).
3768PARTICIPANTS’ PAPERS

VI. INTERNATIONAL COOPERATION
Mutual legal assistance (MLA) in Kenya is governed by the Mutual Legal Assistance Act41 which provides
for giving and received by Kenya information in regard to investigations, prosecutions and judicial proceedings
touching on criminal matters. In addition to the MLA Act, POCAMLA provides for international assistancein investigations and proceedings under section 114 to 120 of the Act. The Attorney General (A.G) of the
Republic of Kenya is the central authority, while competent authorities are made up of the A.G, criminal
investigation agencies and any person or authority designated by the A.G by notice in the Gazette.42 As
provided for in the MLA Act, ARA, EACC and DCI are competent authorities being investigative agencies.
The EACC has the power to cooperate and collaborate with other state organs and agencies, foreign
governments, international or regional organizations in the prevention and investigation of corruption.43 In
addition, the DCI’s functions include collection and providing of criminal intelligence and coordinating thecountry’s Interpol Affairs.44
In 2013, the Director of Public Prosecution was designated by virtue of a Gazette Notice No. 1847 by theA.G as a Competent Authority for purpose of processing requests in respect of MLA in criminal matters
being the prosecutorial authority in Kenya as provided for under Article 157 of the Constitution.
Recognizing that international relations are key in enhancing MLA, the ODPP has enhanced its regional
and international cooperation to strengthen its capacity in facilitation of MLA and Extradition. To begin with,
the Office has enhanced collaborative engagements with prosecutorial authorities and professional networks
which include the East Africa Association of Prosecutors (EAAP), International Association of Prosecutors(IAP) and the Africa Prosecutors Association (APA).
The EAAP is made up of prosecution authorities from Kenya, Rwanda, Burundi, South Sudan, Tanzania,
Uganda, Ethiopia, DRC, Malawi, Mozambique and Zambia whose objective is to promote and facilitate
cooperation among members in detection, investigations and prosecution of crimes in the Region and offering
legal assistance to its members.
In addition, the ODPP actively participates in the IAP established with the aim of fighting transnational
crimes such as drug trafficking, money-laundering and fraud. In May this year, the ODPP Kenya hosted theInternational Association of Prosecutors 4th Regional Conference of Africa and Indian Ocean and the East
Africa Association of Prosecutors Conference 2022. The theme of the conference was “Effective Mechanisms
to Respond to Emerging Crimes and Transnational Organize Crime in Africa: Country Experiences andChallenges”. The conference was attended by prosecutors and actors within the criminal justice system
across the globe saw participants discuss, among other topics, the best practices in the tracing, recovery andforfeiture of illicit funds held in crypto-currencies and harmonization of asset recovery legal frameworks.
Through international and regional cooperation, the ODPP has entered into Memorandums of Understanding(MoUs) to enable provision of informal information sharing and cooperation, which is key in facilitating
expeditious acquisition of information through MLA.
In addition, the ODPP has partnered with various development partners such as the European Union(EU), the United States Department of Justice (USDOJ), the British High Commission (BHC) among others
that have played a key role in training of ODPP prosecutors and other agencies in regard to the MLA
processed in their country and providing advice on acquiring expeditious MLA.
The ODPP in execution of its mandate also has the Anti-Money Laundering and Asset Forfeiture Divisionthat facilitates MLA. In the case of Director of Public Prosecutions vs Chrysanthus Barnabas Okemo & 4
Others,45 the supreme court confirmed that the ODPP is a lead agency in extradition matters in Kenya.
41

Act No. 36 of 2011.
Ibid, section 2.
43
Ethics and Anti-Corruption Commission Act No. 22 of 2011, section 11(3).
44National Police Service Act No. 11A of 2011 of the Laws of Kenya, Section 35(a) and (i).
45
(Petition 14 of 2020) [2021] KESC 13[KLR].
42

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RESOURCE MATERIAL SERIES No. 115

A successful case study involving MLA is the case of Republic v Grace Sarapay Wahkungu & 2 Others.46
The accused persons among them being the then Sirisia Member of Parliament, being directors of Erad
Supplies and General Contractors Limited were charged with an offence of uttering a false document contract
to section 353 as read with Section 349 of the Penal Code Cap 63 of the Laws of Kenya, perjury contrary tosection 108(1) as read with section 110 of the Penal Code and fraudulent acquisition of public property
contrary to section 45(1) as read with section 48(1) of the ACECA 2003.
The brief facts of the case were that the company fraudulently uttered a false invoice for the sum of US
Dollars 1,146,000 as evidence to the arbitration dispute between Erad Suppliers and General Contractors
Limited and National Cereal and Produce Board in Kenya purporting to be an invoice supporting a claim forcost of storage of 40,000 metric tonnes of white maize allegedly incurred by Chelsea Freight. Due to this, theCompany acquired public property in terms of payments made thereto of Ksh. 297,086,505 allegedly incurredby Chelsea Freight on 19 March 2013, Ksh. 13,364,671.40 purporting to be the cost of storage of 40,000 metrictonnes of white maize on 27 June 2013 allegedly incurred by Chelsea Freight and loss of profit and interest
and US Dollars 24,032.00 purported to be the cost of storage of 40,000 metric tonnes of white maize allegedly
incurred by Chelsea Freight and loss of profit and interest on 2 July 2013.
Part of the evidence submitted in court by the DPP to prove the charges against the accused persons
was acquired by the Investigating Officer from EACC through MLA from the Republic of South Africa in abid to verify the existence of two companies of interest, namely Chelsea Freight and Ropack International,
alleged to be domiciled in South Africa. Through MLA, the Investigating Officer managed to contact thedirectors of Chelsea Freight who denied having dealt with Erad Suppliers and General Contractors Limited,
the third accused in the matter. The South African police also confirmed through MLA that some persons
of interest alleged to have been domiciled in South Africa were not in South Africa. The witnesses fromSouth Africa also testified in court in regard to the findings of the investigating officer acquired through
MLA.
Upon conclusion of the matter, the accused persons were found guilty of the offences and convictedaccordingly.

VII. STRATEGIES ADOPTED IN PROSECUTION AND INVESTIGATION OF
CORRUPTION AND MONEY-LAUNDERING CASES IN KENYA
Some of the measures implemented in Kenya for effective prosecution and investigations of corruption
are:
A. Development of Policies and Guidelines
The Guidelines on the Decision to Charge 2019, Plea Bargain Guidelines and Explanatory Notes 2019 andthe Diversion Policy and Guidelines 2019 have been key policy documents in guiding prosecutors on theevidentiary threshold to be met prior to making the decision to charge and providing guidance on theapplication of plea bargaining and diversion in criminal matters. This has led to institution of watertightcases in court with high chances of success and has increased our conviction rates in corruption cases.
In addition, implementation of plea bargaining and diversion as alternatives to prosecution has encouraged
expeditious conclusion of minor corruption cases, which in turn has created more room for hearing anddetermination of complex cases.
B. Inter-Agency Collaboration and Cooperation
The ODPP has been part of multi-agency teams consisting of various investigative agencies from the
EACC, DCI, Kenya Revenue Authority (KRA) among other agencies conducting prosecution guided
investigations so as to ensure that investigations of anti-corruption and money-laundering matters areconcluded expeditiously while ensuring that the same meet the evidentiary threshold.
46

Anti-Corruption Case No. 31 of 2018 [2020] eKLR.

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PARTICIPANTS’ PAPERS

C. Establishment of Special Anti-Corruption Courts
Section 3 of ACECA requires the Chief Justice of Kenya to appoint and gazette special magistrates tohear and determine cases on offences of corruption, bribery, economic crimes and related offences. In linewith this provision, the Judiciary of Kenya established the Chief Magistrate Anti-Corruption Division whose
mandate is to hear and determine the cases prescribed in the Act.
Further, in 2015, the then Chief Justice of the Supreme Court of Kenya Hon. Dr. Willy Mutunga establishedvide gazette notice No. 9123 the High Court Anti-Corruption Division to hear and determine all Constitutional
Petitions, revision applications and appeals arising from offences of corruption, economic crimes and related
offences. The Court also handles matters filed in relation to criminal and civil forfeiture provided under
POCAMLA.
The judges and magistrates in these divisions are specially trained to handle such matters making judicial
the process more efficient and expeditious.
D. Specialized Training of Prosecutors
The ODPP through its Prosecution Training Institute (PTI) has collaborated with various stakeholders
and partners in providing specialized trainings to prosecutors on various thematic areas among them beingtransnational and economic crimes.
E. Use of Experts
The ODPP and Investigative Agencies recruit and consult experts in various fields such as financial,forensics and fraud to assist in technical areas of investigations and advice on areas of focus during prosecutionof the case.
F. Preventive and Deterrence Measures
These are measures implemented in recognition that investigations into corruption, economic crimes andmoney-laundering offences are complex in nature and ordinarily take a long time to conclude and prosecute.
For this reason, alternative measures are considered to disrupt the commission and/or furtherance of suchoffences. One of the measures implemented in the country is the investigation and prosecution of matterssuch as tax offences investigated by the KRA which are likely to be investigated and concluded much fasterthan other predicate offences.
Other strategies adopted are as discussed above such as international cooperation and witness facilitationthat have been effective in regard to MLA and Extradition and ensuring that witnesses are available for thecases.

VIII. CHALLENGES IN IDENTIFYING, TRACING, FREEZING, SEIZING,CONFISCATING AND RECOVERING PROCEEDS OF CORRUPTION AND
SOLUTIONS
Challenges faced in regard to investigations conducted in identifying, tracing, freezing, seizing, confiscating
and recovering proceeds of corruption and prosecution of the same are:i. Limited capacity in expertise and resources.
ii. Slow processes in identification of proceeds of crime outside the country.
iii. Inadequate legislation especially in regard to handling of state officers suspected and or charged withoffences related to proceeds of crime as they remain in office even after being charged.
iv. Inadequate funds for the protection and facilitation of witnesses.
v. Inadequate utilization of technology in the identification, tracing, freezing, seizing, confiscating and71

RESOURCE MATERIAL SERIES No. 115
recovery of proceeds of corruption.
Although Kenya has enacted various statutes in this regard, more needs to be done on the legal frameworks
in order to seal the loopholes hindering effective investigations and prosecution. Further, there is need formore international cooperation and collaborations and funding towards the war against corruption.
References
A. Primary Sources
United Nations Convention Against Transnational Organized Crime, 2000
i.
ii.
The United Nation Convention against Corruption (UNCAC), 2003
iii.
African Union Convention on Prevention and Combating Corruption, 2003
The Criminal Procedure Code, Cap 75 of the Laws of Kenya
iv.
v.
The Evidence Act, Cap 80 of the Laws of Kenya
Anti-Corruption and Economic Crimes Act No. 3 of 2003
vi.
vii.
Witness Protection Act No. 16 of 2006
viii. Proceeds of Crime and Money Laundering Act No. 9 of 2009
The Constitution of Kenya, 2010ix.
x.
National Police Service Act No. 11A of 2011
Ethics and Anti-Corruption Commission Act No. 22 of 2011
xi.
xii.
Mutual Legal Assistant Act, No. 36 of 2011xiii. Office of the Director of Public Prosecutions Act No. 2 of 2013xiv. Victim Protection Act No. 17 of 2014
xv.
Public Procurement and Asset Disposal Act No. 33 of 2015
xvi. Bribery Act No. 47 of 2016
B. Secondary Sources
Guidelines on the Decision to Charge, 2019
i.
ii.
Plea Bargain Guidelines and explanatory notes, 2019
Diversion policy and guidelines, 2019iii.
iv.
http://kenyalaw.org/treaties/treaties/129/United-Nations-Convention-against-Corruption
http://kenyalaw.org/treaties/treaties/142/United-Nations-Convention-against-Transnationalv.
Organizedvi.
http://kenyalaw.org/treaties/treaties/38/African-Union-Convention-on-Preventing-and-Combating
C. Case Law
i.
Michael Sistu Mwaura Kamau & 12 others v Ethics and Anti-Corruption Commission & 4 others[2016] eKLR
ii.
Philomena Mbete Mwilu v Director of Public Prosecutions & 3 others; Stanley Muluvi Kiima(Interested Party); International Commission of Jurists Kenya Chapter (Amicus Curiae) [2019] eKLR
iii.
Daniel Ogwoka Manduku v Director of Public Prosecutions & 2 others [2019] eKLR
iv.
Family Bank Limited & 2 Others -vs- Director of Public Prosecutions & 2 Others [2018] eKLRHigh Court Anti-Corruption and Economic Crimes Miscellaneous Case No. 23 of 2020 Hon. Mbuvi
v.
Gidion Kioko Mike Sonko & Others -vs- the DPP & OthersHigh Court Anti-Corruption and Economic Crimes Revision No. E005 of 2021 Director of Public
vi.
Prosecution -vs- The Chief Magistrate Court Milimani Anti-Corruption Division & 18 Interested
Partiesvii.
Anti-Corruption Case No. 306 of 2016 Republic vs Family Bank Limited and 7 Othersviii. Anti-Corruption Case No. 2 of 2012Republic vs Jackson Mbute Mbugua and 5 Others
Director of Public Prosecutions vs Chrysanthus Barnabas Okemo & 4 Others (Petition 14 of 2020)
ix.
[2021] KESC 13[KLR]
Anti-Corruption Case No. 31 of 2018 [2020] eKLR Republic v Grace Sarapay Wahkungu & 2 Othersx.

72

MALDIVES: CHALLENGES IN RECOVERING PROCEEDS OF CORRUPTIONAND SOLUTIONS
Aminath Shama Naseer*

I. INTRODUCTION
Acts of corruption are not bold or loud like a terror attack. They are silent and lurk around all cornersof public offices. They are not noticeable until it is too late. The story is the same wherever we look. The
same patterns can be seen in the Maldives, now well-known for the Maldives Marketing and Public Relations
Company (MMPRC) Scandal, which saw embezzlement of millions of dollars of state funds through anorganized operation by public officials at the top ranks in 2014 and 2015. This paper will explore thechallenges to recovering proceeds of corruption, lessons learned from MMPRC cases, and possible solutionsin the Maldives.

II. CHALLENGES IN RECOVERING PROCEEDS OF CORRUPTION
A. Institutions
1. Anti-Corruption Commission of the Maldives.
The Anti-Corruption Commission (ACC) is the first modern form of democratic institution with the major
functions to prevent and prohibit corruption within the public sector of the Maldives. The ACC wasestablished on 16 October 2008, under section 199 (a) of the Constitution of the Republic of Maldives, which
was ratified on 7 August 2008.1 The ACC is administrated under the Anti-Corruption Commission Act(13/2008), which was ratified on 24 September 2008.
The constitution of Maldives states that the definition of corruption shall be written in the Anti-Corruption
Commission’s Act, which now defines acts of corruption by expressly mentioning specific sections of chapter
510 of the Penal Code of Maldives. The Penal Code criminalizes bribery2 to public officials, misuse of official
authority3 among others.
2. Prosecutor General’s Office of the Maldives
The Prosecutor General’s Office of the Maldives, also established in 2008, is the prosecution authority of
the Maldives4 that oversees all investigations, ensures a fair and effective investigation and makes prosecuting
decisions.
B. Current Legal Framework
The current legal framework for asset recovery in the Maldives has its limitations, but despite this, it isbeing used across the board in all types of cases at present. Since 2020, the prosecution strategy has changed
to file a petition for the recovery for proceeds of crime along with the charges that PGO files. This sectionof the paper will briefly look into the current legal framework and its challenges and limitations to therecovery of proceeds of crime.

*

Public Prosecutor, Prosecutor General’s Office, Maldives.
S.199 of the Constitution of the Maldives 2008.
2
S.510 of the Penal Code of Maldives 2014.
3
Ibid., S.512, S.513.
4
Article 223, The Constitution of Maldives 2008.
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1. Criminal Procedure Code (CrPC) and Its Limitations
Under the Criminal Procedure Code (CrPC) of the Maldives, S.192 paves way for the court to issue a
confiscation order of proceeds of a crime upon a conviction. The provision states that, the court may only
issue this order if the statute under which the accused was charged expressly provides for the confiscationof proceeds of crime with regard to that offence.
The CrPC provides for the court to amend the order of confiscation if additional proceeds of crime wereidentified after the initial warrant.5 It also provides for cases where the defendant was found to havepossessed the proceeds of the crime at one point, but it can no longer be identified or located. Under S.195,
in such cases the court has the discretion to issue a warrant to confiscate money or property equivalent to
the proceeds of crime if the property was given or sold to a third person; taken outside the jurisdiction; there
has been unreasonable reduction in the value of the property; or it has been comingled with other monies orproperties. In addressing the existence of third-party rights, the CrPC states that it should not bar theconfiscation unless the third party can prove that he/she is a bona-fide purchaser.
Although the regime appears to be comprehensive and adequate enough, S.192 of the CrPC limits
instances where prosecution could seek an order of confiscation and the court to issue an order as it provides
that the statute under which the prosecution decides to charge must expressly provide for confiscation of
the proceeds of crime. Offences of corruption are now listed under chapter 510 of the PC; however, the PC
does not stipulate that the proceeds of those crimes can be confiscated. This is a move away from the legal
position of the prior PC of Maldives which expressly provides for confiscation upon conviction. S.14 of thecurrent PC further states that filing criminal charges would not bar civil actions to recover proceeds ofcrime.
However, this poses a challenge, and there is debate whether recovery can be sought when the PC has
not provided for it. The Supreme Court of Maldives (SC) recently published a sentencing guideline whichindirectly addresses this. While it does not address confiscation, it addresses the court’s role in awarding
damages. S.48 of this guideline states that it is at the discretion of the presiding judge to make an orderawarding damages, but the judge may only do so if the prosecution has filed a petition to award damages at
the time of submission of charges. This same principle also applies to confiscation according to recent
decisions of the criminal court.
2. Case Study on the Limitations of the CrPCIn 2014 and 2015, Maldives was shaken by the blatant and open corrupt practices which led the top
officials of the then government to embezzle millions of dollars in state funds. The PGO has filed charges
against various individuals and companies alike in their involvement in this scheme. An individual named
Hamid Ismail was one of them, who facilitated the siphoning of state funds. A 100 per cent State Owned
Enterprise (SOE) named The Maldives Marketing and Public Relations Company (MMPRC) received $5
million by leasing an inhabited island of the Maldives to a third party to develop as a tourist island on 4 June
2014. The investor issued a cheque in the amount of $5 million pursuant to the agreement, which wasendorsed by the Managing Director of the MMPRC, facilitating the cheque to be deposited to a company
which Hamid Ismail had a 99 per cent share. The funds were deposited and dispersed to various otheraccounts and eventually cashed. Part of the funds were exchanged for Maldivian currency and used forcompany purposes. Hamid Ismail was charged with facilitating the embezzlement of State funds. The
Criminal Court of Maldives (CrC) found him guilty and convicted him. The case was appealed to the High
Court of Maldives (HC), which affirmed the decision of the CrC. It was then appealed to the SC; however, theSC also affirmed the decision of the CrC and the HC.6 The recovery was not addressed in any of the stages
because the prosecution did not seek a confiscation order. After the decision of the SC, the PGO sought anorder of confiscation at the CrC under S.192 of the CrPC. The CrC rejected the petition on the grounds that
S192 can be applied by a judge when deciding on the case and not independently. The PGO believed that the
CrC was not wrong in this decision and since the court cannot give a wider interpretation to the section,
PGO has brought the issue to the notice of the Attorney General’s Office who is in charge of legislative
drafting by the State, and the SC. So far, no changes have been brought to the law.
5
6

S.194 of the CrPC.
Case Number: 2019/SC-A/48 (Hamid Ismail vs Prosecutor General’s office), Supreme Court Maldives.

74PARTICIPANTS’ PAPERS
3. The Prevention of Money Laundering and Terrorism Financing Act 2014 (AMLA) and Its Limitations
Although the PC does not address the confiscation of proceeds of crime, The Prevention of Money
Laundering and Terrorism Financing Act 2014 (AMLA) does address this. Under S.62 of the act, it allows forthe court to issue an order of confiscation upon conviction of an offence stipulated in the act. Under thissection, the prosecution may ask to confiscate: (1) the laundered funds or property; (2) the instrumentalities
used in the commission of a predicate offence; (3) the proceeds of crime, or funds and property derived fromproceeds of crime; (4) the intended proceeds of crime or proceeds of crime; (5) the instrumentalities; (6) funds
or property with which the proceeds of crime have been intermingled; (7) property derived directly or
indirectly from proceeds of crime, including income, profits or other benefits from the proceeds of crime.
The confiscation order pursuant to this section is made against the person to whom the funds or property
belong to, unless their owner can establish that he acquired them by actually paying a fair price or in returnfor the provision of services corresponding to their value or on any other legitimate grounds and that he wasunaware of their illicit origin.
4. Case Study on Confiscations in Money-Laundering Cases
Although the AMLA came into effect in 2014, there have been very few prosecutions under the act. The
first charge under the AMLA was brought against the former President of Maldives, Mr. Abdullah Yameen
Abdul Gayyoom (Yameen) in 2019 in relation to the MMPRC scandal. The case (now widely known as the
Vodamula case) has been concluded by the Supreme Court, and some answers as to confiscation/recovery
were received in this case.
Yameen was the President of Maldives between 2013 and 2018. During his tenure in 2014 and 2015, the
MMPRC was used as a vehicle to siphon State funds and eventually these funds were dispersed to varietyof illegal activities, including bribery, corruption, illegal political spendings. After this scheme came to lightin October 2015, the president’s office requested a special audit of the MMPRC from the Auditor General’s
office. This audit report was published on 4 February 2016, and it details the widespread scheme, noting that
the MMPRC was being used as a vehicle to siphon State funds and that the Managing Director of the
MMPRC was illegally endorsing the cheques the MMPRC was receiving, and a majority of these cheques
were then deposited to a private company called Scores of Flare Pvt Ltd (SOF). Over 70 million dollars andover 100 million Maldivian Rufiyaa was funnelled through SOF.
The facts of the case are that the MMPRC leased an island named GA.Vodamula to a company on 11
October 2015 for $1 million. The investor issued a cheque to the MMPRC for the amount. The cheque wasendorsed by the Managing Director of the MMPRC and diverted to the SOF. A few days later, the SOF
issued two cheques of $500,000 directly to the then President Yameen. Both cheques were deposited into thepresident’s account by a staff member working for SOF on two separate dates. Yameen kept these funds in
his account, and transferred this amount, along with the other monies in his account to an investment bankaccount. The bank and Yameen agreed that he would keep a total of $3.4 million dollars, which includes the$1 million deposited by SOF, in the investment account for 36 months from 14 March 2017. The investment
matured on 14 March 2020.
Between the time that Yameen received the monies to his account and up until the time he deposited themoney and later questioned by the authorities in relation to the monies, various activities took place. Afterthe initial investigations in relation to the MMPRC were launched, in 2016, the president of the ACC notified
Yameen that he has received $1 million dollars over the phone. Yameen asked the president to quickly
determine if the money was State funds belonging to the MMPRC. Despite many attempts by the ACC, thepresident refused to cooperate during the investigation and refused to give a statement. In 2017, the ACC
sent a list of questions that they wanted to ask about the MMPRC scheme to the president and Yameen’s
statement was taken, albeit, not through the traditional methods. In 2018, the election was upcoming andrumours of the $1 million to Yameen’s accounts were fast spreading and opposition was quick in their step
to use this against Yameen. Yameen then informally discussed with the ACC to hand over the $ 1 million to
the ACC until such an investigation could be carried out to determine the source of funds. After this
discussion, the ACC sent a letter to Yameen asking him to sign an agreement to transfer the monies hereceived from SOF to an Escrow account under the ACC’s name. Yameen replied to this letter in writing
agreeing to do so. In March of 2020, an agreement was signed and pursuant to this agreement Yameentransferred $1 million. The legal minister of the president’s office officially informed the ACC that Yameen
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had in fact transferred $1 million to the account as agreed.
Fast forward to 2019, the FIU sent a Transaction Analysis report in relation to an STR raised by the bankin relation to $1 million dollars transferred from a well-known businessperson in Maldives to a former
minister’s account, who then transferred this amount to the then President Yameen. It was only then thatinvestigative authorities discovered that Yameen had in fact lied to the ACC, and he had not transferred the$1 million that he received from SOF to the escrow account per the agreement, and he had in fact transferred$1 million he acquired through other methods. The ACC also discovered that he was still harbouringsuspected proceeds of crime in his investment banking account, and it was maturing and acquiring profits
throughout this time.
A case was initiated against the president for providing false information to the investigative authorities
and on suspicion of money-laundering. In his defence, Yameen claimed that the monies were given to him byhis former Vice President for his political spending. He could not provide the source of funds and why hewould receive such a large amount, how it is legal, and why he invested money he received for politicalspending for 36 months, and had it held in a bank account unutilized during his presidential campaign. In
February 2019, Yameen was charged with money-laundering. The prosecution did not ask for a confiscation
order for the monies laundered; however, the investigative authorities had his account frozen pursuant to a
court order they sought. In November 2019, he was convicted of money-laundering. He appealed the decision
to the HC, which affirmed the decision of the CrC. He then appealed the case to the SC, which thenoverturned the decision in November 2021.7
The decision of the SC was an interesting one, not only because it was irregular, and the SC departed
from legal principles that the SC has always upheld. For the purpose of this discussion, the decision itself is
not important, and it is what the SC said about the suspected proceeds of crime that is important. The SC,
while finding that Yameen was not guilty, stated that, Yameen acquired the money, and invested it knowing
very well that it was suspected proceeds of crime and that he as the president of Maldives, has done thiswithout a second thought to his responsibilities as the president, and he has in fact put forward his own
interests before his people and the electorate. And for this reason, the SC concluded that the State has theright to pursue a civil case to recover the monies without it hindering the rights of Yameen under S.60 of
the constitution, which expressly lays down the principle of double jeopardy.
Pursuant to this decision, the MMPRC has initiated a case against the former president to recover the $1
million. The case is now ongoing. This is the first case in which a civil action was sought after an accused
was acquitted. Hence, it is yet to be seen how this would change or impact the asset recovery regime.
5. Challenges Identified during the Investigation of the MMPRC Scandal
It is worth noting that after Yameen’s tenure ended in 2018, the current government came into powerwith the promise of recovering lost state funds through the MMPRC. The President established thePresidential Commission on Corruption and Asset Recovery (PCCAR), with the task to investigate thecorruption cases that were not adequately investigated and recover lost state funds. The PCCAR enteredinto a joint investigation agreement with the Maldives Police Service (MPS) and the ACC. The PCCAR was
dissolved in early 2022, and the exact reasons for the decisions were not made public by the President’s
office. But it is thought that the commission was duplicating resources and work that was done by the ACC.  
Following the dissolution, all the pending investigations and documents maintained were handed over to the
ACC, which is continuing the work.
The PCCAR during its tenure noted various challenges to asset recovery and asset-recovery-focusedinvestigations on many platforms including their public appearances to the parliament. Some of the many
noteworthy challenges are listed below.
(a) Lack of proper mechanisms for property registries
No law in Maldives requires an integrated property registry to be kept. The Maldives is geographicallymade up of small islands, which means that all islands have their own property registry. It takes a lot of
7

Case Number: 2021/SC-A/30 (Abdullah Yameen Abdul Gayyoom vs. Prosecutor General’s Office), Supreme Court ofMaldives.

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PARTICIPANTS’ PAPERS
effort and time for the investigative authorities to determine if someone has property somewhere other thanwhere his permanent address is registered, and criminals often take advantage of this system.
(b) Unjust enrichment not being an offence in the Maldives
The investigation of the MMPRC scandal uncovered public officials and high profile politically exposed
persons (PEPs) and their family members and close associates in possession of large amounts of unexplained
wealth completely unmatched to their income. The investigative authorities often come to a dead end when
this happens because no law in Maldives prohibits such possession and there is no law that would allow
investigative authority to question these persons. There is also no law that would have the persons answerable
in any other avenue.
With the PCCAR continuously advocating for unjust enrichment being criminalized, on 6 May 2021, theparliament passed an amendment to the PC, adding a new offence named “unjust enrichment”. However,upon reading the elements of the offence, it becomes very clear that the act criminalized was not really thatof unjust enrichment but in fact money-laundering. This section is, therefore, pointless because under S.18 of
the Penal code, the prosecution must prioritize prosecutions under the AMLA if there are similar provisions
in the PC criminalizing the same acts that are criminalized under the AMLA.
(c) Cash-based economy
The Maldivian economy is very cash intensive. All businesses big and small are heavily operated throughcash. Although businesses earning over a certain amount requires registration with the Maldives Inland
Revenue Authority (MIRA), and declaration and payment of Goods and Services Tax (GST), many do notcomply with this. Under the law, MIRA can only take action if the business is registered with MIRA and isevading tax. This leaves a large loophole for all criminals. Furthermore, under Maldivian law, while tax
evasion is classified as a serious offence under the CrPC, the offence warrants house arrest under the Tax
Administration Act and is considered a level 1 misdemeanour under the PC and warrants a jail sentence of
4 months and 24 days. Under S.1005 of the PC, this sentence is often reduced and changed to house arrest
considering the sentence prescribed under the Tax Administration Act. Additionally, it is noteworthy that
it is only recently that the parliament passed the Income Tax Act, which prescribes tax brackets andrequires individuals and businesses to declare and pay taxes if they receive a certain amount of income.
(d) Record keeping
Under law, banks and businesses alike are required to maintain records up to 5 years. Often times, actsof corruption and money-laundering are not discovered until much later in Maldives, evident from the
MMPRC scandal of which investigations are still ongoing. This creates a great obstacle for a speedierinvestigation and sometimes for any investigation at all.
(e) Legal framework for asset recovery being limited
The challenges posed by the current legal framework is detailed in 2.2 of this paper.
(f) Lack of accountability and symbolic asset declarations by public officials
One of the things that investigation of the MMPRC scandal brought to light was the requirement of public
officials to declare their assets. This is a requirement under the law, and the Auditor General’s Office has the
mandate to receive and vet them. However, it came to the attention of the investigators that many
parliamentarians and top government officials did not file the declarations during the time periods they wererequired to do so. Furthermore, inaccuracies were noted in many that were filed, with many officials omitting
to include properties and monies that they have to their names. For instance, in the Vodamula case, theprosecution noted that the president himself did not declare his assets to the Auditor General for 4 years
during his tenure. There were no actions taken and no accountability by the public officials regarding this.
(g) Designated Non-Financial Business and Professions (DNFBP) are not regulated
The MMPRC scandal revealed public officials with extravagant lifestyles, with luxury properties to theirnames. These properties were often bought from private real estate firms and were paid for in cash in bulk.
Under S.39 of the AMLA, dealers in real estate shall report as a suspicious transaction to the Financial
Intelligence Unit when involved in transactions for their client concerning the buying or selling of real estate.
However, there is no mechanism for such reporting in place, and DNFBP’s remain largely unregulated tothis date.
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RESOURCE MATERIAL SERIES No. 115(h) In rem proceedings are not provided for in the law
An effective asset recovery regime would be independent from the criminal justice system. A legal
framework should be drawn up for the state to proceed with in rem proceedings against the property or
monies in question whether or not a criminal investigation or prosecution is ongoing. This would allow thepolice and prosecution to prioritize and focus on the important cases.

III. SOLUTIONS
Maldives has come a long way, albeit slowly, in terms of its asset recovery regime. The Maldivian law
and legal system have prescribed various avenues for asset confiscation. These avenues are not effectively
utilized by state institutions for various reasons. Lack of procedures and mechanisms is at the top of this list.
However, it is notable that the prescribed avenues are still not being employed to the full extent.
Changes to the current law to close the loopholes are needed, and the Attorney General’s Office appears
to be working on it. It is a myth to think that in every single case of corruption a conviction could beacquired. Hence, specific legislation on the recovery of proceeds of crime allowing in rem proceedings anddetailed procedures for asset tracing, freezing, management, and confiscation is required for effectively
recovering proceeds of crime.

IV. CONCLUSION
The asset recovery regime in the Maldives is in its infant stage and much work needs to be done to learn
the lessons from the past experiences, especially the MMPRC scandal, and patch the loopholes of the statutes
and keep the regime afloat. With it being young and merely symbolic and unemployed for much of its
existence, the familiarity with the regime is low among the investigators, prosecutors and others involved in
the criminal justice system. Much work needs to be done to train on the current legal framework andimprove it.

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CRIMINAL JUSTICE RESPONSE TO CORRUPTION
Butrus Yai*

I. INTRODUCTION
A. Brief Overview
South Sudan gained its independence from Sudan on 9 July 2011, after a long civil war in Sudan between
the government of the Republic of Sudan and then southern-based rebel group, the Sudan People’s Liberation
Movement/Army (SPLM/A). The warring parties reached an agreement titled the Comprehensive Peace
Agreement (CPA). The peace agreement was successfully mediated by the Intergovernmental Authority on
Devolvement (IGAD). The CPA guaranteed, among other rights, the right of southern Sudanese to a right ofself-determination,1 in which they choose, either to vote for unity of Sudan or vote for separation of Sudan,
after the end of interim period six years. In a referendum held in January 2011, Southern Sudanese
overwhelmingly voted for separation by 99 per cent to form an independent state. After independence, South
Sudan approved the transitional constitution that created a legal framework for the country and that would
transform it from an autonomous region to an independent state. Under the constitution, South Sudan
adopted a decentralized system of government,2 which provides three levels of government: national
government level, sitting in the capital city of Juba, headed by the president; state levels of government
headed by a governor, sitting in each state capital city (South Sudan has ten states and three administrative
areas); and local government levels within the states headed by a commissioner.
The national government level has three pillars of government: the national legislature (comprised of the
National Legislative Assembly and the Council of States), the executive and the judiciary. In contrast, eachstate government and local government have only two organs: the state legislative assembly and theexecutive.
B. Definition of Corruption
Efforts have been exerted by many scholars, researchers, economists and many others to define corruption.
As a result, many definitions around the globe have been reached so far. Corruption has been defined as aform of dishonesty or a criminal offence which is undertaken by a person or an organization which isinterested in a position of authority, in order to acquire illicit benefits or abuse power for one’s personal gain.
Corruption may involve many activities which include bribery, peddling influence and embezzlement.3
Stephan D. Morris,4 a professor of politics, wrote that political corruption is the illegitimate use of public
power to benefit a private interest. Economist Lan Senior defined corruption as an action to secretly provide
a good or a service to a third party to influence certain actions which benefit the corrupt, a third party or
both in which the corrupt agent has authority.5 The World Bank economist Daniel Kaufmann extended theconcept to include “legal corruption” in which power is abused within the confines of the law – as those withpower often have the ability to make laws for their protection.6*

Public Prosecutor, Directorate of Public Prosecutions, Ministry of Justice and Constitutional Affairs, South Sudan.
The Comprehensive Peace Agreement (CPA).
2The Transitional Constitution of South Sudan, 2011.
3
En.m.wikipedia.org
4
Morris, S.D. (1991), Corruption and Politics in Contemporary Mexico. University of Alabama Press, Tuscaloosa.
5
Senior, I. (2006), Corruption – The world ‘s big C., Institute of Economic Affairs, London.
6
Kaufmann, Daniel; Vicente, Pedro (2005).” legal protection” (PDF). world bank. Archived from the original (PDF) on 5 May
2015.
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II. EFFORTS TO COMBAT CORRUPTION
The Constitution of South Sudan, 2011, provided for the establishment of an independent Anti-Corruption
Commission with the functions to protect public property, investigate and prosecute only cases of corruption
and combat administrative malpractice in public institutions.7 The Commission is mandated to prevent andcombat corruption at all levels of government and institutions as well as to direct and provide oversight for
all persons holding constitutional posts and senior public officers to make declaration of their income, assets
and liabilities.8 The Anti-Corruption Commission Act, 2009, that was enacted during the then autonomous
regional Government of Southern Sudan (GOSS), has mandated the South Sudan Anti-Corruption Commission(SSACC) to investigate and prosecute alleged cases of corruption in collaboration and coordination with the
Ministry of Justice and Constitutional Affairs (MoJCA).  However, the Commission had been criticized by alarge number of South Sudanese of not doing enough to combat the rampant corruption in the country bytaking a serious and significant step towards investigation and prosecution of corruption-related cases.
The president of the republic had declared a fight against corruption on many occasions. Practically, in
2012, he revealed that corrupt government officials had stolen an estimated $4 billion from public funds; hesent a letter to 75 officials and individuals close to the government officials to return the stolen money andoffered them amnesty should they return the stolen money. $60 million has been recovered or returned to
the government.9
Corruption in South Sudan – for some government officials – seemed to be a common practice that official
keep doing on regular basis as long as he or she holds that particular position. The money being stolen or
embezzled from public funds ended up in foreign bank accounts or spent on purchasing properties in foreigncountries, especially East African countries neighbouring South Sudan. The government had made a call for
global support to recover assets stolen by South Sudanese government officials and individuals associatedwith them.
South Sudan, in fulfilment of its international commitments to join hands with the international community
in the fight against corruption, has acceded to the United Nations Convention Against Corruption (UNCAC)
and has enacted the Anti-Corruption Commission Act, 2006, and the Anti-Money Laundering and Counter
Terrorist financing Act, 2012. It also established an Independent Commission to tackle and take the lead infighting against corruption in the country. Efforts are under way to enact domestic legislation, such as an
Asset Recovery Act,  Mutual Legal Assistance (MLA) and Extradition Act, and other relevant legislation, toform a legal basis for cooperation with other counties in areas of collecting and exchanging information,
provision of evidence obtained by other jurisdictions, to assist in criminal investigations, prosecution ofcorruption offences and more especially on matters related to identification, tracing, freezing, seizing,
confiscating and recovering proceeds of corruption.

III. INVESTIGATIONS IN SOUTH SUDAN
Criminal investigations in South Sudan are governed by the Code of Criminal Procedures Act, 2008. The
Act vests investigative powers in the Police under the supervision of Public Prosecution Attorneys. The Act
also gives investigative powers to Public Prosecution Attorneys or Magistrates to complete the investigation
him- or herself, where necessity requires.10
A. The Investigation of Corruption Offences
Investigation of cases/offences related to corruption is the responsibility of the Anti-Corruption
Commission, to initiate the investigations on alleged corruption that occurred or are about to occur. In doing
so, and as a matter of collecting evidence, the commission can search bank accounts held by the suspects.
7

The Constitution of South Sudan, 2011.
South Sudan Ant-Corruption Commission Act, 2009.
9BBC.co.uk/news/June 201210
The Code of Criminal Procedures Act, 2008.
880

PARTICIPANTS’ PAPERSSouth Sudan’s Anti-Corruption Commission Act, 2009 states that:the commission shall have the power to investigate any allegation, facts, conditions, practices ormatters, including the search of bank accounts and other assets of spouses, children and others
in a domestic relationship, which it considers necessary or proper to determine whether any
person is engaged in or about to commit corruption.
If the commission has reasonable suspicion that a corruption offence has been committed or isabout to be committed, the commission shall form an Inquiry/Investigation Committee headed
by a member of the Commission and shall designate competent officers to investigate the case.11
1. The Investigation Reports
The investigation committee prepares, compiles and submits a final report to the Commission showing:(a) The facts determined by the Investigation Committee; and (b) The findings and recommendations of theInvestigation Committee. In the event that the findings of the report of the Investigation Committee
recommend prosecution, the case which was the subject matter of the investigation shall be referred to the
Ministry of Justice and Constitutional Affairs for prosecution.12
2. Identifying and Tracing Proceeds
Under the Anti-Money Laundering and Counter Terrorist Financing Act, 2012, the Financial Intelligence
Unit (FIU) is mandated to receive and analyse reports of suspicious transactions from reporting persons(banks, financial institutions, accountants, cash dealers and customs officers among others). If the FIU has
reasonable grounds to suspect that the transaction involves money-laundering or embezzlement of publicfunds or any other related offences, it shall disseminate the report to the appropriate law enforcement
agency to take appropriate legal action.13 The FIU also can give instruction to any reporting person to takeappropriate steps to facilitate inspections of suspicious transactions that involve funds or property that areproceeds of crime.   The reporting persons are protected under the above-mentioned law, which statesclearly that:
Notwithstanding any other written law, no action, suit or other proceeding shall lie against areporting person, or any director, officer, employee or representative of the reporting  person,
on grounds of breach of banking or professional secrecy or by reason of any loss resulting froman investigation, prosecution, or other legal action taken against any person, following a reportor information transmitted in good faith under this chapter, whether or not the suspicion proves
to be well founded.14
Acquiring and analysing objective evidence like documents, bank records, data stored in electronic
devices, is an essential process when investigating cases of money-laundering, embezzlement of public funds
or any corruption related offences. It sheds light on the truth of how the acts were committed and the motiveof the offenders and their associates in the commission of the crime.
The investigation process in South Sudan requires the suspect to attend the investigation. In situations
where the suspect is in another jurisdiction, he/she has to be extradited to attend the investigations. The
witnesses are always summoned to come and provide truthful testimonies on subject matter of investigation
during pre-trial investigation and subsequent trial. The witnesses and their immediate dependents areprovided protection from harm or danger as a result of their testimony. However, South Sudan did not enact
legislation to regulate compulsory systems to testify under subpoena, but the penalties for perjury andobstruction of justice are regulated under the Penal Code Act, 2008.
The legal framework on criminalization of money-laundering in South Sudan is governed by the Act ofparliament legislation titled Anti-Money Laundering and Counter terrorist Financing Act, 2012. It criminalized
acts of money-laundering and provided penalties therefor. Moreover, the predicate offences under the Anti11

South Sudan Anti- Corruption Commission Act, 2009.
South Sudan Ant- Corruption Commission Act, 2009.
13
Anti-Money Laundering and Counter Terrorist Financing Act, 2012.
14
Anti-Money Laundering and Counter Terrorist Financing Act,2012 Chapter IV.
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RESOURCE MATERIAL SERIES No. 115
Money Laundering Act include but are not limited to: any dealing which amounts to illicit drug trafficking
under legislation related to narcotic drugs and psychotropic substances, terrorism including terrorist
financing, participating in an organized criminal group and racketeering, trafficking in human beings andsmuggling immigrants, illicit arms trafficking, sexual exploitation including sexual exploitation of children,
armed robbery, kidnapping, smuggling forgery and  corrupt practices among others.15
In carrying out investigations, it is mandatory to cooperate and coordinate – where necessity requires –with other investigative authorities being a governmental or a private institution as long as that would serve
the interests of justice.
3. Case Study (1): Government of South Sudan v. John Agau and Others
This case started when the president of the Republic issued an order in June 2015 suspending top officials
in his office accusing them of corruption.16 Investigations were conducted and revealed that 16 officials wereinvolved in corruption in the office of the president. The matter was referred to the High Court for trial. The
Court established that the suspects jointly misappropriated public funds, abused their power and positions,forged the signature of the president on financial forms and official documents, counterfeited stamps andseals of the office of the president and other government institutions for the purpose of cheating andmisappropriating of public funds. The court sentenced them to life imprisonment for stealing $14 million and
30 million South Sudanese pounds,17 seventeen (17) vehicles and other exhibits related to the case wereconfiscated. In the subsequent appeals, the supreme court ordered acquittal of six suspects as innocent
including the former chief administrator in the office of the president.
4. Accurate and Expeditious Freezing, Seizing and Confiscation
Freezing or seizing of assets involves temporarily prohibiting the transfer, conversion, disposition or
movement of assets or temporarily assuming custody or control of assets on the basis of an order issued bya court or other competent authority.18 Freezing is an action that temporarily suspends rights over the asset,
e.g.19 applying to freeze a bank account. Seizure is an action to temporarily restrain an asset or put it into
the custody of the government and may apply to physical assets such as a vehicle. These measures are used
to temporarily prevent the movement of assets pending the outcome. Confiscation of assets is a permanent
deprivation of assets by order of a court or other competent authority. Confiscation (or asset forfeiture) isused after the final outcome of the case, as it is a final measure that stops the criminal from accessing assets
obtained from a crime.20 In order to be able to successfully conduct criminal investigations and to ensure that
assets are secured throughout the investigations, it is important that the investigation agencies can freezeor seize such assets for the duration of investigation and criminal procedure.
Non-conviction-based confiscation has been seen as an alternative confiscation tool by many countries
around the globe, especially in developing counties (particularly African countries), and it has been
implemented with different levels of success. NCB asset forfeiture provides an effective avenue for confiscationin situations where it is not possible to obtain a criminal conviction – whether the defendant is dead,unknown, missing or immune from prosecution, or in cases where the statute of limitations preventsprosecution. It benefits from the lower evidentiary threshold required to obtain a confiscation order, whencompared to proceedings designed to determine criminal liability.21
5. Case Study (2): The Case of Dura Saga
Dura is a South Sudanese name for Sorghum, in 2008 the National Ministry of Finance and Economic
Planning of Southern Sudan, gave more than 290 companies/traders contracts to deliver dura to the States,22in a move to eradicate the hunger that people were suffering. The state governments were expected toreceive dura from the companies/traders and then write a letter upon receipt to the national ministry of
15

Ant-Money Laundering and Counter Terrorist Financing Act,2012. Chapter I.
https//sudantribune.com>article 5…
17
http://www.aa.com.tr>africa>1618
http://www.oecd-illibrary.org>sites
19
Fighting Text crime -The Ten Global Principles, Second Edition.
20
Fighting Text Crime -The Ten Global Principals, Second Edition. Principal 4.
21
https: knowledgehub.transparency.org/assets/uploads/helpdesk/Non-Conviction-Based-Forfeiture_2022pdf
22
http://en.m.wikipedia.org/corruption_in_south_sudan
1682PARTICIPANTS’ PAPERS
finance to confirm the delivery of the dura. However, the companies/traders falsely claimed to have delivered
dura to destination (state). The state governments lied to the national ministry of finance that the dura had
been delivered. Then, the ministry approved payment for the goods that had not actually been delivered. The
government of South Sudan paid millions of dollars for undelivered dura.23 The committee was formed toinvestigate the matter. Unfortunately, the investigations into the case of dura were unsuccessful.
B. International Cooperation
1. Identifying and Tracing Proceeds
Asset recovery refers to the process whereby an investigator tracks, identifies and locates proceeds ofcrime. Asset tracing can be conducted by a number of parties, including law enforcement authorities,
prosecutors, investigating magistrates, private investigators or interested parties in private civil actions. The
investigators trace assets for the purpose of freezing and seizing them, so that these assets can be confiscatedthrough a judicial order and returned to the victims of crime.24
2. Utilization of Suspicious Transaction Reports from Financial Intelligence Units
Under the Anti-Money Laundering and Counter Terrorist Financing Act, 2012, the Financial Intelligence
Unit (FIU) have a duty to receive and analyse reports of suspicious transactions from reporting persons. If
the FIU has reasonable grounds to suspect that the transaction involves money-laundering or embezzlementof public funds or any other related offences, it shall disseminate the report to the appropriate law enforcement
agency to take appropriate legal action.25 Thus, suspicious transaction reports from financial intelligence are
essential in fighting crimes of money-laundering and identifying and tracing of proceeds of corruption.
3. Utilization of Interpol (ICPO)South Sudan is a member of the International Criminal Police Organization, and by virtue of being amember, it can get benefits from the services that are rendered to member states, including cooperation
between law enforcement agencies and secure exchange of information, especially in the area of apprehensionof culprits who commit crimes in South Sudan and make their way to other jurisdictions around the globe.
4. Mutual Legal Assistance (MLA)
Mutual Legal Assistance in criminal matters is a process by which states seek and provide assistance toother states in serving of judicial documents and gathering evidence for use in criminal cases.26 South Sudan
has neither acceded to a Mutual Legal Assistance Treaty nor enacted domestic legislation on Mutual Legal
Assistance (MLA). However, the country is applying the principle of reciprocity following the diplomaticchannels when applying for mutual legal assistance and extradition. In the absence of an MLA law, thepractice in South Sudan is that the Director of Public Prosecution (DPP) checks and verifies compliance andimplements all outgoing requests to requested states and incoming requests from requesting states. The
DPP ensures that all mutual legal assistance requests, including requests related to money-laundering andterrorist financing, are processed and executed without delay in a timely manner. All requests have to go
through diplomatic channels. There is no agreed or adopted exemplar request for mutual legal assistance inthe office of the DPP. However, the essential requirements include: the name of the central authority;summary of the facts relevant and statement of the relevant laws; purpose of the request and nature of theassistance sought; and other useful information.
C. Asset Recovery
Asset recovery refers to the process by which the proceeds of corruption transferred abroad arerecovered and repatriated to the country from which they were taken or to rightful owners.27 UNCAC
provides for direct recovery of assets, whereby a foreign state is able to initiate a civil action in a foreign
jurisdiction to establish title and ownership of property.28 It means that courts should be able to ordercompensation or damages to a foreign state and recognize them as legitimate owners of property.

23

http://www.voaafrica.com/amp/south-sudan-probe-sorghum-dura-saga-corruption
http://eucrim.eu/articles/tracking-and-tracing-stolen-assets-foreign-jurisddictions/25
Anti-money laundering and Counter Terrorist Financing Act, 2012.
26
http://www.unodc.org
27
UNCAC, Chapter V.
28
UNCAC, Article 53.
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1. Legal Framework
South Sudan has no domestic legislation on asset recovery, yet the country applies the best practices andprinciples under the United Nations Convention Against Corruption (UNCAC) and other similar international
treaties and conventions. Currently, the Directorate of Public Prosecutions of the Ministry of Justice andConstitutional Affairs is using The Asset Recovery Handbook, A Guide for Practitioners, as a guide on alllegal matters related to asset recovery. Efforts are underway to enact domestic legislation on asset recovery
and mutual legal assistance and extradition in South Sudan.

IV. CHALLENGES FACED IN FIGHTING CORRUPTION
The challenges that South Sudan is facing in fighting against corruption could be summarized as follows:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)

Continued rebellion and conflicts;
Lack of political will;
Political instability;
Political influence on the Judiciary;
Lack of integrity, accountability and transparency;
Lack of tough domestic legislation on corruption; andFear of rebellion if corrupt politicians/officials are prosecuted.

V. PROPOSED POSSIBLE SOLUTIONS FOR SOUTH SUDAN
Corruption is a global problem that all countries of the world have to confront. However, the solutions canonly be home grown.29 The solutions that South Sudan needs to adopt to make fighting against corruption
meaningful, in my humble view, is to have sincere political will. The politicians regardless of their politicalaffiliations must show commitment and join hands with the president, in his declared commitment andreadiness in fighting corruption. In addition to that, South Sudan needs to restore peace and stability, thecountry has suffered from war, conflict and rebellions from different groups against the government. Startingfrom the Heglig crisis boundary war over oil-rich regions between South Sudan’s Unity and Sudan’s South
Kordofan States, coming to internal senseless wars and conflicts of 2013 and 2016 between armed rebel
groups known as Sudan People’s Liberation Movement/Army (SPLM/A) and other groups on one side andthe government of South Sudan on the other side. The wars and conflicts and continued rebellion affected
South Sudan economically and formed fertile soil for corruption to prevail in the country. Moreover, there isan urgent need to enact tough domestic legislation on corruption offences and make necessary amendments
to the existing laws, establish and strengthen the institutions mandated to take the lead in the fight against
corruption. There is a need also to prioritize accountability and transparency when handling or managing
public funds. Furthermore, the government must ensure the independence of the Judiciary and create a
conducive environment in which the judiciary can perform its judicial functions without being subject to any
form of duress, pressure or influence from politicians, any other persons or institutions and give justice achance to prevail. Thus, South Sudan can enjoy the fruits of the fight against corruption.

29

Johnny Saverio Ayiik, former Deputy Chairperson of the Anti-Corruption Commission.

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THE ASSET RECOVERY REGIME IN SRI LANKA – ILLEGALLY DERIVEDASSETS
G.A.D. Sajeevani*

I. INTRODUCTION
Corruption is in the limelight of the present Sri Lankan society, as many claim that the economic, socialand political changes in the country are due to the damage caused to the nation by stolen State assets
through corruption. Exploring possibilities of substantial recovery of State assets stolen as proceeds ofcorruption has become the main theme of the day. Depriving the people responsible for corruption fromenjoying the fruits of corruption, the proceeds of corruption, while making efforts to recover stolen assets
has become a major challenge in the current administration of criminal justice. The innovative methods ofintroducing crime proceeds into financial systems by the perpetrators of corruption calls for holistic approachand joint efforts by all law enforcement authorities, at both national and international levels, towards
investigating and prosecuting corruption offences. Asset recovery, freezing, seizure and confiscation ofproceeds of crime are governed by several legal provisions in different legislation in specific contexts.1 The
country is focusing on enacting composite legislation on Anti-corruption, Proceeds of Crime and Whistleblower
Protection with a view of establishing a strong legal framework to combat corruption and for successful
recovery of stolen State assets.

II. IDENTIFICATION, TRACING, SEIZING AND CONFISCATION OF PROCEEDS OF
CORRUPTION
The true origin of concealed corrupt assets by white collar offenders has made it virtually impossible toidentify and trace ill-gotten wealth. Existing legal provisions in different pieces of legislation attempt toprevent illicit asset flows through keeping due diligence on financial transactions and to recover and confiscate
or forfeit proceeds of corruption to the State. Investigation and prosecution of corruption offences involve
many procedural steps under different legislation, creating different corruption offences, on recovery ofproceeds of corruption.
A. Investigations
1. Substantive Offences and Investigative Powers
The offences of corruption leading to recovery of assets are contained in several pieces of legislation.
Transaction with property realized from an unlawful activity is an offence under the Prevention of Money
Laundering Act (PMLA).2 The Act encompasses a wide range of offences such as unlawful activities3 leading
to money-laundering. The definition of unlawful activity under the PMLA includes the offences under theBribery Act4 and corruption offences under the Penal Code5 such as dishonest misappropriation of property,
criminal breach of trust and cheating.6 The offences cover even the intentional acquisition or use of proceeds*

Assistant Director General, Commission to Investigate Allegations of Bribery and Corruption, Sri Lanka.
Prevention of Terrorism (Temporary Provisions) Act No. 48 of 1979 (Sec. 4, 6 (1) (d)), Tobacco Tax Act No.8 of 1999 (S.15(2)),
Forest Ordinance [Sec. 40(1)], Poisons, opium & Dangerous Drugs Act as amended by Act, No. 13 of 1984 [Sec. 79] and theCustoms Ordinance 1870 (e.g. sec. 125) deal with the seizure of assets.
2
Section 3 of the Prevention of Money Laundering Act, No. 5 of 2006 as amended by Act No. 40 of 2011.
3
Ibid., Section 35.
4Part II and V of the Bribery Act No. 11 of 1954.
5
Penal Code Ordinance No.2 of 1883.
6
Ibid., Sections 386, 388,399 and 401.
1

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RESOURCE MATERIAL SERIES No. 115
of crime in the presence of knowledge of it being proceeds of crime at the time of its receipt. This includes
continuation of retention or concealment of proceeds. The term transaction as defined7 in the PMLA covers
all instances of conversion and transfer of proceeds of corruption. Any attempt, conspiracy or abetment
relating to the offence also have been made offences under the said provision. Conviction for the commissionof a predicate offence, the unlawful activity, is not a pre-requisite in proof of the offence of money-laundering.
A person can be charged with any of the predicate offences or money-laundering as separate charges,
without any limitation. The Judicature Act8 provides for jurisdiction of High Courts even for the offences
committed offshore by citizens. The Bribery Act provides for similar jurisdiction to courts in soliciting andaccepting gratification outside the country.9 Jurisdiction10 under the PMLA is available for the commission of
unlawful activities outside the country, constituting offences in the offshore jurisdiction or constituting
offences if committed in Sri Lanka.
Bribery by public officials,11 judicial officials,12 members of parliament,13 any other person14 and corruption,15
the abuse of authority for unlawful loss to the State or for unlawful benefits for him/her or any other person
are offences under the Bribery Act. Section 23A of the Bribery Act draws a presumption of bribery against
a person who fails to explain the deficit between the known expenditure over known income, illicit enrichment.
This provision places a reverse burden of proof to the accused to explain legal means of acquisition ofproperty. Similar provision in the PMLA under section 4 draws the presumption of unlawful origin of assets
in illicit enrichment cases.
The offences under the Bribery Act are being investigated and prosecuted by the independent Commission
to Investigate Allegations of Bribery or Corruption (CIABOC). The offences under the Penal Code and the
PMLA are being investigated by the Police Department and prosecuted by the Attorney General’s
Department. The Commission to Investigate Allegations of Bribery or Corruption Act (CIABOC Act)16
entrusts with the independent Commission, comprising of three Commissioners including two retired judgesof the Court of Appeal or Supreme Court, several powers of investigations. The Commission can exercise
these powers on its own, without seeking judicial orders. It includes calling for information from government
institutions, mobile telephone service providers, impounding passports and prohibition orders on transfer ofassets.17 The Police Department as opposed to this is investigating offences under the direct supervision of
the Magistrates according to the provisions of the Code of Criminal Procedure Act, where the investigators
are expected to report the investigative steps to the Magistrates from time to time.18 The Financial
Intelligence Unit (FIU) established under the Financial Transactions Reporting Act (FTRA)19 is the regulator
as to suspicious financial transactions.
2. Identification and Tracing of Proceeds of Corruption
Most of the investigations still use only the traditional methods of identifying/detecting proceeds ofcorruption such as relying on information leading to sting operations and witness statements. The CIABOC
has a dedicated hotline operated during 24 hours to get swift information as to the commission of offences
enabling the investigators the early detection of assets as corpus of the offences. This includes bribes
accepted by public officials. Early information as to solicitation of bribes provide opportunity for theinvestigators to trap the offenders while accepting the bribe.

7

Section 35 of the Prevention of Money Laundering Act No. 5 of 2006.
Section 9(1)(f) of Judicature Act No.2 of 1978.
9
Section 89(A) of the Bribery Act No. 11 of 1954.
10
Section 35(p) of Prevention of Money Laundering (Amendment) Act No.40 of 2011.
11
Sections 16, 17, 19, 21, 22, 23 of the Bribery Act No. 11 of 1954; Public Servant under Section 90 of the Act include a wide
range of officials employed in any authority using public funds including public companies.
12
Ibid., Section 14.
13
Ibid., Section 14 & 15.
14
Ibid., Part II.
15
Ibid., Section 70.
16
Commission to Investigate Allegations of Bribery or Corruption.
17
Section 5 of the Commission to Investigate Allegations of Bribery or Corruption Act No. 19 of 1994.
18
Code of Criminal Procedure Act No. 15 of 1979.
19
Financial Transactions Reporting Act, No.6 of 2006.
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PARTICIPANTS’ PAPERS
Detection of proceeds of corruption through financial transactions are being monitored by the FIU on arisk-based approach. The FIU regulates and supervises all the institutions subjected to the reporting
obligations under the FTRA. Both natural and legal persons20 are governed under the FTRA. The FTRA
require the subject institutions to have mechanisms in place for customer due diligence and identification on
beneficial ownership. Banks are under an administrative responsibility of reporting suspicious transactions
and in default subjected to criminal sanctions. Further, the said Act requires the subject institutions tomaintain records on such information and also to report suspicious transactions21 to the FIU. The regulations22
issued by the FIU cover many natural and legal persons susceptible to assist in transferring proceeds ofcorruption and include rules as to the due diligence by financial institutions,23 designated non-financebusinesses,24 and insurers.25 The regulation and supervision by the FIU prevent transfer of proceeds of crime
as an early step, before a reactive recovery. The FIU assistance to the investigative authorities, both thepolice and the CIABOC to identify the proceeds of corruption enable the tracing of the said assets before
concealments.
The FIU is empowered under the FTRA to share information with domestic authorities. It has a legal
obligation to refer matters or information as to suspicious transactions to relevant law enforcement authorities.
The FIU from time to time has been an informant to the CIABOC on suspicious transactions triggering
assets and corruption investigations enabling early detection. All the financial institutions under the rules
issued by the FIU are under the obligation to preserve customer due diligence information over a period of
six years26 preserving the identification of information on assets.
The assets and liabilities disclosure system27 of public officials and elected officials exposes illicit financial
flows. This system prevents public officials claiming further legitimate income and assets further to declaredassets and income. Declarations while taking a self-preventive measure for a public official increasing wealthillegally, also provides evidence enabling comparison of declared assets and the detected assets to detect
proceeds of bribery, ensuring the recovery of the same.
The CIABOC Act28 empowers the CIABOC29 to search and seize proceeds of crime without obtaining
court orders before destruction or concealment of such evidence. This is open even for non-produced
documents on request of CIABOC. Section 5 of the CIABOC Act empowers the Commission to call for interalia financial information from banks of a suspect, his/her spouse and children, company in which the person
is a director, a trust in which the person has a beneficial interest or a firm in which the person is a partner.
This includes bank documents, account opening forms, customer information, mandates, registrations etc.
Section 16 of the Prevention of Money Laundering Act (PMLA) makes it an exception to secrecy provisions
in other laws to divulge such financial information under the PMLA. The FIU or an authorized officer under
section 18 of the FTRA has the power to examine books and records of institutions in order to see thecompliance status. This stands both as a preventive mechanism against illicit finance flows and early detection
method of proceeds of corruption.
Information from financial institutions and public records such as land registry, motor traffic registrationand company registration are being used to trace the proceeds. Border crossed proceeds are traced throughinternational cooperation networks such as INTERPOL and the Egmont Group, leading to Mutual Legal
Assistance. Dual criminality is a hurdle in obtaining formal international assistance where some of the20

Section 33 of the Financial Transactions Reporting Act, No.6 of 2006.
Part I of Financial Transactions Reporting Act, No.6 of 2006.
22
http://fiusrilanka.gov.lk/rules_directions.html
23
Financial Institutions (Customer Due Diligence) Rules, No. 1 of 2016 - Extraordinary Gazette No 1951/13, January 27 of
2016.
24
Designated Non-Finance Business (Customer Due Diligence) Rules, No. 1 of 2018. - Extraordinary Gazette No 2053/20,
January 10 of 2018.
25
Insurers (Customer Due Diligence) Rules, No. 1 of 2019 - Extraordinary Gazette No. 2123/14, May 13 of 201926
http://fiusrilanka.gov.lk/docs/Rules/2016/1951_13/1951_13_E.pdf
27
Declaration of Assets and Liabilities Law No. 1 of 1975.
28
Commission to Investigate Allegations of Bribery or Corruption Act No. 19 of 1994; Section 7.
29
Commission to Investigate Allegations of Bribery or Corruption.
21

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RESOURCE MATERIAL SERIES No. 115
substantive offences are found not to be criminal offences in the requested State.
Whistle-blowers are protected under the Assistance to and Protection of Victims of Crime and Witnesses
Act.30 They are protected from harassment, intimidation, coercion, violation or suffering from loss or damage
in mind, body or reputation or any adverse change in the condition of employment.31 They are given an
immunity under the CIABOC Act from all criminal and civil litigation resulting from providing any information
to the CIABOC.32 In addition, section 23 of the CIABOC Act provides for the protection of the witnesses bymaking interference with witnesses an offence under the Act. Further, Section 81(1) of the Bribery Act
provides for pardoning accomplices for the purpose of obtaining evidence at a trial. Similar provision isavailable under Section 256 of the Code of Criminal Procedure Act in relation to offences under other penal
legislation. These provisions encourage the participants of the offences and the witnesses and informants toprovide information to the law enforcement authorities, as to the flows of proceeds of corruption enabling
early detection and tracing of such assets.
(a) Case study
In a concluded case33 under Section 23A of the Bribery Act, a person employed in a government institution
as a naval engineering assistant had been charged for accumulation of wealth in excess of his known income.
Several assets detected by the CIABOC investigators included deposit of money to three bank accounts, a
van and a motor bike. The deficit of expenditure over income was claimed to be Rs. 3,500,000/-. The accusedat the trial failed to explain the means of income for the deficit. The CIABOC investigators detected andtraced the property questioned in the indictment as unexplained acquisitions. This had been done throughsearching the registries at the Department of Motor Traffic and through obtaining documentary evidence
from both government and private banks. However, none of the properties were seized or frozen. The exact
means of acquisition of each property was not properly explained and, hence, the difference between the total
income and expenditure had been considered at the trial. Having drawn the adverse presumption of bribery
in absence of proper explanation for the money spent on acquisitions the court imposed a sentence of five
years’ rigorous imprisonment and a fine of Rs. 5,000/- on the accused. A mandatory additional penalty of thevalue equivalent to the deficit presumed to have acquired from bribery (Rs. 3, 500,00/-) was also imposed asa confiscation of the value of the proceeds of bribery.
3. Freezing and Seizing
The PMLA contains specific provisions34 on freezing of proceeds of money-laundering. Designated police
officers are empowered under section 7 of the PMLA to issue Freezing Orders, extending to seven days,
over such property. This Order can be extended even to any person or institution who will have to giveeffect to the said order. Contravention of the same amounts to a criminal offence under the same provisionof the PMLA. As a measure to track and identify the proceeds, Section 12 of the PMLA empowers the court
to issue Orders to the possessors, controllers etc. of property as informed by the police to deliver identification
documents of the property to the designated police officer. If any person is in breach of such Order the court
may issue a search Order with a view to seize the required documents.
The appointment of a receiver of seized proceeds by court, upon an application of a designated police
officer, for obtaining the possession and management of the same is governed under Section 11 of the
PMLA.35 In the event of forfeiture or confiscation of property section 1536 of the PMLA empowers the court
to appoint a receiver to be in-charge of such property.
The FIU also has the power to do an administrative freezing of property up to seven days.37 The generallaw on freezing and seizure of assets, process to compel the production of documents and other movable

30

Assistance To And Protection Of Victims Of Crime And Witnesses Act, No. 4 Of 2015.
Ibid., Section 6.
32
Section 9 of the Commission to Investigate Allegations of Bribery or Corruption Act No. 19 of 1994.
33
HC B 1855/2010 Decided on 20.09.2018.
34
Section 6-12.
35
Prevention of Money Laundering Act No. 5 of 2006 as amended by Act No.40 of 2011.
36
Ibid.
37
Section 15(2) of the Financial Transactions Reporting Act No. 6 of 2006.
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PARTICIPANTS’ PAPERS
property, is found in the Code of Criminal Procedure Act.38
Under FTRA the authorized officers have the power39 to seize any cash or negotiable instruments
suspected to be the evidence of the commission of any offence referred therein. Provisions for seizure anddetention of such recoveries are also provided for in the same Act.40 Section 26 of the FTRA prescribes theprocedure in disposal of assets. Accordingly, the procedure is subjected to the discretion of the High Courtof the Western Province Holden in Colombo. This provision provides for continued detention orders basedon evidentiary value for the matter under investigation. However, the total period of detention is limited to
two years. The same provision allows the High Court to release the seized items for justifiable reasons to
any claimant. At the expiration of the period of one year, in absence of any claimant for the seized items, theitems are forfeited to the State.
The CIABOC under Section 7 of the CIABOC Act has the power to authorize its officers to search any
place or person reasonably suspected to be in possession of evidence or non-produced material as requested
for by the CIABOC. This section empowers the searching officers to seize any of the aforesaid material
relevant for the commission of any offence under the Bribery Act or the Declaration Law.41
4. Confiscation
The Bribery Act provides for additional penalties, in addition to the fines imposed as a sentence afterconviction, equivalent to the value of the gratification accepted42 or the value of property, not exceeding threetimes of such value, presumed to have been acquired through bribery.43 In illegal accumulation of wealthcases the value of the proceeds is being considered a basis for confiscation44 in imposing a fine upon theconvict for three times the value of the proceeds and subjecting his/her property equivalent to such valueof the fine being confiscated. The court has the discretion even to make an order forfeiting45 the proceeds ofbribery in lieu of additional penalties. Under the Declaration of Assets and Liabilities Law the assets omitted
to have declared are forfeited to the State.46
Property of a convicted person under Section 3 of the PMLA is subject to be forfeited. Forfeiture ofproceeds derived from money-laundering,47 value-based confiscation48 of proceeds of money-laundering andextended confiscation of proceeds of assets49 belongs to the convict of money-laundering are provided for in
the PMLA. In light of this both laws enable confiscation of proceeds of corruption.
Section 28A (1) proviso of the Bribery Act precludes prejudicial Orders of forfeiture or confiscation being
made against the interest of bona fide purchases of subject property. A similar provision is available under
Section 13(2) of the PMLA.50
Confiscation and forfeiture are wholly dependent upon the conviction of the accused. Upon an acquittal
the seized and frozen proceeds are subjected to production disposal procedure under the CCPA.51(a) Case Study
In a bribery case52 concluded in the year 2019, the first accused who was the Secretary to a prominent
ministry had solicited a bribe of USD 3 Million to facilitate an ongoing investment by a foreign national. The
38

Part VI of the Code of Criminal Procedure Act No. 15 of 1979.
Ibid., Section 25.
40
Ibid., Section 25.
41
Declaration of Assets and Liabilities Law No. 1 of 1975.
42
Section 26 of the Bribery Act No.11 of 1954.
43
Ibid., Section 26A.
44
Section 26A of the Bribery Act No. 11 of 1954.
45
Ibid., Section 28A.
46
Section 9(3A) Declaration of Assets and Liabilities Law No. 1 of 1975.
47
Section 13(1) of the Prevention of Money Laundering Act No. 5 of 2006 .
48
Section 13 of the Prevention of Money Laundering Act No. 5 of 2006.
49
Ibid., Section 13(4).
50Ibid as amended by Act No. 40 of 2011.
51
Chapter XXXVIII of the Code of Criminal Procedure Act No. 15 of 1979.
52
HC/PTB/1/04/2019 Decide on 19.12.2019.
39

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RESOURCE MATERIAL SERIES No. 115
ministry in which the accused was an employee had had an official involvement relating to the said investment.
He further had solicited Rs. 3 million and Rs. 100 million from the same investor on different dates. An
advance of Rs. 20 million had been demanded on a later date. Said money had been accepted at a sting
operation conducted by the CIABOC upon the information of the complainant investor. The bribe money had
been recovered on the spot in the possession of the accused. The second accused who was a chairman of aprominent public entity had conspired with, aided and abetted the first accused in soliciting and accepting
the money. Both the accused were convicted and the court while imposing a sentence of 20 years’ rigorous
imprisonment and a fine of Rs. 65, 000/- upon the first accused also imposed an additional penalty of Rs. 20
million for accepting the solicited money. In this case the value of the gratification accepted by the accusedhad been recovered and confiscated as an additional penalty under Section 26 of the Bribery Act.
B. International Cooperation
1. Identifying and Tracing of Proceeds of Corruption
The Mutual Legal Assistance in Criminal Matters Act governs53 the whole regime of international
cooperation as to criminal matters. Part VII54 of the MACMA relates to tracing, seizure and freezing ofproceeds of crime. Enforcement of foreign Orders are subjected to section 19 of the MACMA. Non-convictionbased confiscation also is provided for in the amended Act.55 The law does not provide for confiscation ofproperty of foreign origin through domestic adjudication of offences. Also, seizing, freezing and preservationof property based on future confiscation upon reasonable grounds is not provided for in the law. Section 27of the PMLA56 provides that for the purposes of investigation and prosecution of offences under the Act, thematters relating to international cooperation should be governed by the MACMA.57 Accordingly, suchcooperation can be sought on the basis of being a commonwealth country, an existing agreement, a United
Nations treaty obligation or under reciprocity.58 The Central Authority for requests is the Secretary to the
Ministry of Justice.
The FIU under FTRA may share and disclose with its foreign counterpart institutions any informationor suspicious transaction reports on agreed terms and conditions.59 Agreements between the foreignauthorities and the FIU are entered into with the permission of the Minister in-charge of the FIU. Suchagreements ensure the relevancy of information to the foreign agency and the confidentiality as to the useof such information. From the year 2017 to 2021 the FIU has received 148 such requests for information andhas sent 266 similar requests to its counterparts. In the year 2021 the FIU has responded to 19 such
requests.60 The legislation requires securing confidentiality and restricted use of information provided.
Accordingly, as a member of the Asia Pacific Group (APG) on money-laundering the FIU has entered into a
Memorandum of Understanding (MOU) with its counterparts from more than 34 countries.61 Sharing of suchinformation is also available under other international networks such as INTERPOL, the Egmont Group, theSouth Asian Association of Regional Cooperation (SAARC) and the Bay of Bengal Initiative for Multi-Sectoral
Economic Cooperation (BIMSTEC).
The FTRA prohibits62 maintaining anonymous or identified by number accounts. Section 11 of the FTRA
permits disclosure of financial information, subjected to secrecy, in court proceedings. Hence, bank secrecy
cannot be a ground for refusal of any assistance request. Absence of dual criminality also is not a direct
reason for a refusal of a request but subjected to the discretion63 of the Central Authority, the Secretary to
the Ministry of Justice.64 Sections 15 & 17 of the MACMA provide for assistance in search and seizure ofproceeds and tracing of proceeds, respectively. The Financial Intelligence Unit is the domestic centre for the53

Sections 17,18 & 19 of the Mutual Assistance in Criminal Matters Act No. 25 of 2002.
Ibid., Sections 17-19.
55
Mutual Assistance in Criminal Matters (Amendment) Act No. 24 of 2018.
56
Prevention of Money Laundering Act No. 5 of 2006 as amended by Act No. 40 of 2011.
57
Mutual Legal Assistance in Criminal Matters Act No. 25 of 2002.
58
Section 2 ibid as amended by Act No. 24 of 2018.
59
Sections 16, 17 of the Financial Transactions Reporting Act No. 6 of 2006.
60
FIU Annual Report 2021 http://fiusrilanka.gov.lk/docs/AR/FIU_AR_2021.pdf
61
http://fiusrilanka.gov.lk
62
Section 2 of the Financial Transactions Reporting Act No.6 of 2006.
63
Section 6(1) of the Mutual Assistance in Criminal Matters Act No.25 of 2002.
64
Section 4 of the Mutual legal Assistance in Criminal Matters (Amendment) Act No. 24 of 2018.
54

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PARTICIPANTS’ PAPERS
Egmont Group network. Sri Lanka became a member of the GlobE network and agrees to share information
on an informal basis with its member countries.
The FTRA empowers65 the authorized officers to search any person leaving or arriving Sri Lanka, uponsuspected grounds of committing an offence under the FTRA on currency reporting. Requisite declarations66
to the customs and immigration and emigration authorities as to the excessive limit of outgoing and incoming
foreign currency as prescribed under the regulations screens, prevent and detect the illegal transfer ofmoney. Even for the offshore remittances of money, the tax clearance of the Inland Revenue Department isrequired as a preventive measure of transferring ill-gotten money.
Section 7 of the MACMA provides for international cooperation on identification and locating possible
witnesses for proceeds of corruption.

III. ASSET RECOVERY
Recovery of assets is through the direct execution67 of conviction-based foreign confiscation orders under
MACMA. Direct recovery of proceeds of corruption is not available under Sri Lankan law. Prompt reply toa Mutual Assistance request is a responsibility of the Central Authority.68 Prompt transmission of information
on exigent instances is provided for by the law.69 While making evidence received from a competent authority
as prescribed admissible in judicial proceedings,70 the amended MACMA facilitates video conferencing of
witnesses at domestic judicial proceedings from different States.71 This provision also facilitates joint
investigations by local and foreign authorities. Section 17 of the MACMA as amended specifically deals withrequests for tracing proceeds of crime. Fresh legal provisions in the amended MACMA includes preservation,
search and seizure of computer data.72
The Criminal Investigation Department and FIU in 2018 did promptly assist Bangladesh and Taiwan ona cross-border wire transaction. The stolen assets detected, seized and repatriated to Bangladesh amounted
to around USD 20 Million. Similar occurrences of fraudulent wire transfers had been detected by the CID
from time to time and had assisted the foreign jurisdictions in that regard.

IV. CHALLENGES
Legal restriction73 in the CIABOC Act as to the maintenance of secrecy except only for the purposes of
the CIABOC Act is a major challenge for investigations. This provision debars exchange of information evenwith law enforcement authorities such as FIU and police. When the police investigate corruption-related
Penal Code offences and the offence of money-laundering, the CIABOC is prohibited by law from sharing
information with those institutions even in the presence of same transaction offences of bribery and corruption.
The CIABOC cannot seek joint investigations with the said institutions. Investigation of the same incident
by both police and the CIABOC on different offences enable concealing proceeds and loss of vital evidencein view of delay and absence of coherence between investigations.
Non-availability of proper coordination among domestic law enforcement authorities too is a defect in the65

Section 24 of the Financial Reporting Act No.6 of 2006.
Regulations made under the Exchange Control Act No.12 of 2017 https://www.cbsl.gov.lk/sites/default/files/cbslweb_
documents/laws/cdg/Foreign_Exchange_Act_Direction_No_2_of_2021_e.pdf
67
Sections 19, 20 of the Mutual Legal Assistance in Criminal Matters Act No. 25 of 2002 .
68
Section 5A of the ibid as amended by Act No.24 of 2018.
69
Ibid., Section 5B.
70
Ibid., Section 11.
71
Ibid., Section 14.
72
Ibid., Part VIIA.
73
Section 17 of the Commission to Investigate Allegations of Bribery or Corruption Act No. 19 of 1994.
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criminal justice system. If all the law enforcement authorities investigating into one and the same incident
under different legislation have a legal basis to join together and share information within the respective
authorities, it expedites detection and tracing of proceeds before possible conversions.
Given the complexities in cross-border transactions the requisite of providing the evidentiary basis, thenexus between the suspect and the assets as proceeds of crime, remain a challenge in the absence ofexpertise in identifying and tracing the proceeds of corruption. Discovering concrete evidence on illegally
accumulated foreign assets is a challenge faced by the CIABOC. Tracing cooperative witnesses also is achallenge in the background of absence of a strong witness protection regime.
Unavailability of a designated authority with expertise for the management of the seized property is amain lacuna in law. Absence of comprehensive legal provisions as to the seizing, freezing, forfeiture andconfiscation of proceeds of all types of corruption offences is an existing gap in the law. Present laws do notlay down provisions for non-conviction-based confiscation. Hence, acquittal of the accused of a corruption
case ends at releasing even proceeds of corruption to the same owner upon claim without confiscation.
The present legal provisions relating to witnesses and informants of corruption offences are not sufficiently
protected under the legal provisions providing physical and mental protection from all forms of harassments,
including employment related matters, relocation or non-disclosure of identity of informants.
The dual criminality requirement under MACMA would be a basis for refusal of requests for assistance.
Hence, absence of offences such as bribery by foreign public officials, trading in influence, private sector
bribery etc. would be subject to the discretion of the Central Authority.
Inadequacy of trained and specialized investigators and prosecutors is a similar challenge for lack ofoperational and financial dependence based on the general recruitment and financial procedures. Requirementof methodical training to professional investigators is a key step to secure successful recovery of assets.
Absence of a common approach with regard to the recovery of assets including legislation addressing all
aspects of recovery of proceeds of corruption supported by an effective enforcement system remain the main
lapse in the criminal justice system. Added to that lack of overarching measures as to the revelation of
beneficial ownership, third-party ownership and unregistered assets remain an obstacle for timely detectionof proceeds of corruption. Special investigative techniques such as wiretapping, use of bugging devices etc.
are also not legitimized under the law.

V. PROPOSALSThe secrecy provision in the CIABOC Act should be relaxed to share information among law enforcement
authorities for successful investigations. Laws should be amended to enable forming of joint investigation
teams with different authorities. Further, the CIABOC as the special agency to deal with bribery andcorruption, should be mandated to investigate and prosecute incidental offences under the Penal Code andthe offence of money-laundering committed within the same transaction.
A composite law on proceeds of crime would rectify the existing lacunas in law. These include theproperty management authority, non-conviction-based confiscation, extended confiscation, value-based
confiscation, civil forfeiture etc.
Legal provisions are required on wider protection to informants, victims and witnesses of corruption
offences and special investigative techniques enabling the CIABOC to take swift actions on identification andtracing of proceeds. Provisions on offences such as private sector bribery, bribery of foreign public officials,
trading in influence and sports corruption would cater for dual criminality requirements on mutual assistancerequests. Strengthening the CIABOC with operational and financial independence is advisable for having
skilled and professional investigators and prosecutors.

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VI. CONCLUSION
The legal and institutional framework relating to identification, tracing, seizing, freezing and confiscationof proceeds of crime in Sri Lanka reflects the involvement of a number of institutions such as CIABOC, FIU,
police, Attorney General and Ministry of Justice and the existence of a number of related laws. Although theexisting legal provisions fulfil the requirements under UNCAC, some areas need to be further strengthened,
while some concerns call for consideration of fresh legal provisions in order to have a coherence andcompleteness on the subject. Considering the multiple involvements and differences in legislation, a composite
law on the subject of asset recovery is a key requirement under the present context. Currently the authorities
are in the process of drafting a composite Proceeds of Crime Bill covering all the aspects of recovery ofstolen assets. It is expected to provide logical, technical and practical solutions for many issues raised
relating to asset recovery including international cooperation. Recent amendment of the Mutual Legal
Assistance in Criminal Matters Act No. 24 of 2018 has already addressed many issues relating to foreign
jurisdiction-based recovery of proceeds of corruption. The proposed composite Anti-Corruption Bill would
further strengthen the national anti-corruption body’s readiness to recover such proceeds.
Appendix
A. Abbreviations
CIABOC Act	Commission to Investigate Allegations of Bribery or Corruption Act No 19 of 1994
Commission to Investigate Allegations of Bribery or Corruption
CIABOC		CID			
Criminal Investigation Department
FIU			
Financial Intelligence Unit
Financial Transactions Reporting Act No.6 of 2006
FTRA		
GlobE		Global Operational Network of Anti-corruption Law Enforcement
The International Criminal Police Organisation
INTERPOL		
MACMA		Mutual Legal Assistance in Criminal Matters Act No.25 of 2002
PMLA		
Prevention of Money Laundering Act, No.5 of 2006
B. Legislation
Assistance to and Protection of Victims of Crime and Witness protection Act No.4 of 2015
Bribery Act No.11 of 1954
Code of Criminal Procedure Act No. 15 of 1979
Commission to Investigate Allegations of Bribery or Corruption Act No. 19 of 1994
Customs Ordinance No. 17 of 1869
Declaration of Assets and Liabilities Law No 1 of 1975
Financial Transactions Reporting Act No. 6 of 2006
Forest Ordinance No. 16 of 1907
Judicature Act No. 2 of 1978
Mutual Legal Assistance in Criminal Matters Act No.25 of 2002
Mutual Legal Assistance in Criminal Matters (Amendment) Act No.24 of 2018
Penal Code No.2 of 1883
Poisons, opium & Dangerous Drugs Act as amended by Act, No. 13 of 1984
Prevention of Money Laundering Act No. 5 of 2006
Prevention of Terrorism (Temporary Provisions) Act No. 48 of 1979
Tobacco Tax Act No.8 of 1999

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REPORT OF THE PROGRAMMEThe 24th UNAFEI UNCAC Training Programme“Identifying, Tracing, Freezing, Seizing, Confiscating and Recovering Proceeds of Corruption: Challenges
and Solutions”
1. Duration and Participants• From 2 to 28 November 2022
• 30 overseas participants from 21 jurisdictions• 2 participants from Japan
2. Programme Overview
This programme mainly focused on the challenges that criminal justice practitioners face in identifying,tracing, freezing, seizing, confiscating and recovering proceeds of corruption and asset recovery, and it
explored solutions to those challenges. In particular, the programme considered the following topics: (i)effective investigative techniques for identifying and tracing proceeds of corruption in each jurisdiction, (ii)accurate and expeditious preservation and secure confiscation of proceeds of corruption and (iii) international
cooperation. Also, this programme, through lectures on best practices and the participants’ discussions,
aimed to enhance the participants’ knowledge of measures to improve anti-corruption efforts in theirrespective jurisdictions and to establish a global network for the exchange of updated information on thepractices of the respective jurisdictions.
3. Contents of the Programme(1) Lecturers
The following visiting experts from overseas and Japanese experts, as well as UNAFEI faculty members,
gave lectures as follows:••

Visiting Experts-

Mr. Federico Paesano
Senior Financial Investigation Specialist
Basel Institute on Governance-

Mr. Tuomas Salminen
External Affairs Coordinator
Office of the Director, Division of External Operation, Registry
International Criminal Court-

Ms. Vera Wang
External Affairs Coordinator
Office of the Director, Division of External Operation, Registry
International Criminal Court

Japanese Experts-

Mr. SATO Takuma
Deputy Director of Second Investigation Division
Criminal Investigation Bureau
National Police Agency-

Mr. YUKI Takeshi
Chief, Japan Financial Intelligence Center (JAFIC)
National Police Agency-

Mr. ICHIKAWA Hiroshi
Public Prosecutor
Director of Special Investigation DivisionTokyo District Public Prosecutors Office95

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Mr. SEKI Yoshitaka
Public Prosecutor
Deputy Director of Public Security DivisionTokyo District Public Prosecutors Office(2) Individual Presentations
Participants shared the practices and the challenges in their respective jurisdictions regarding the themeof the Programme through their individual presentations. Materials of all presentations were uploaded
online for later reference by participants.
(3) Group Workshops
The participants were divided into three groups and exchanged their views and knowledge throughdiscussions on topics: (i) effective investigative techniques for identifying and tracing proceeds of corruptionin each jurisdiction, (ii) accurate and expeditious preservation and secure confiscation of proceeds ofcorruption, and (iii) international cooperation.
Regarding investigative techniques and preservation and confiscation, the participants mainly discussed
measures to obtain information and evidence from financial institutions and measures to preserve assets
in accounts, such as freezing accounts. Some participants pointed out that bank secrecy laws are often an
obstacle to investigation, and that it is often difficult to conduct expeditious and effective identifying,tracing and preservation of the proceeds of corruption under legal systems which require judicial scrutiny
for these measures, especially in the early stage of investigation, where sufficient evidence has not beencollected to persuade judges. In this regard, the participants recommended the following practices:establishing a legal framework which allows prosecutors to issue  preservation orders which are subject
to judicial review, and encouraging financial institutions to include consent-based provisions in consumer
banking contracts that permit the institutions to provide law enforcement authorities with accountrecords. In addition, the need for awareness-raising among the public as part of preventing corruption andprotection of whistle-blowers were pointed out.
Regarding international cooperation, it was recognized that issues identified regarding topics (i) and (ii)may be obstacles to international cooperation such as mutual legal assistance. In addition, the generalissues regarding international cooperation are the delay or failure in responding to requests for mutual
legal assistance in investigations, the complexity of procedures, as well as lack of information sharing on
requirements for accepting such requests in respective jurisdictions. As measures to promote international
cooperation, the participants were in favour of promoting information sharing and harmonization of legal
frameworks, informal information exchanges through various frameworks both bilateral and multilateral,
recognizing the necessity of collecting evidence in collaboration with foreign law enforcement authorities.
Each group concluded the programme by presenting their action plans based on the challenges they
identified and what they learned in the lectures, presentations by the fellow participants and discussions.
4. Feedback from the Participants
Most participants commented that the lectures, individual presentations and group workshops helped
them gain knowledge. On the other hand, some commented that it would have been better if more specificinformation and best practices had been exchanged. We appreciate all the feedback from the participants
and take them into consideration in planning our training programmes in future.
5. Comments from the Programming Officer
Combating corruption is an issue that all countries face, and asset recovery is an urgent issue throughout
the world. I felt the enthusiasm of the participants in the programme by their active participation. The
participants were highly interested in the lectures, presentations and group workshops, which led to active
discussions. We hope that the knowledge gained from this course will help the development and enhancementof each participant’s jurisdiction.
This programme was held in person for the first time since UNAFEI’s in-person training courses weresuspended due to the Covid-19 pandemic. In-person communication throughout the programme made iteasier for the participants to understand the content of the programme as well as to establish personal
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connections. We hope that this personal network will contribute to preventing corruption and asset recovery
in the future.

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UNAFEICHAIR’S SUMMARY
Enhancing Technical Assistance to Reduce Reoffending and Promote Inclusive Societies
Tokyo, Japan
18 – 20 October 2022

Opening Ceremony
1. Mr. MORINAGA Taro, Director of the United Nations Asia and Far East Institute for the Prevention of
Crime and the Treatment of Offenders (UNAFEI), delivered opening remarks and welcomed theparticipants to the meeting. The fourteen experts from the field of crime prevention and criminal justiceand twelve UNAFEI faculty members who participated in the meeting are listed in Annex 1.
2. The discussion was chaired by Ms. IRIE Junko, Deputy Director of UNAFEI. Recalling the theme of theevent – “Enhancing Technical Assistance to Reduce Reoffending and Promote an Inclusive Society” – theChair elaborated the purpose of the meeting: to identify promising practices to reduce reoffending,
implementation challenges in developing countries, and the role of technical assistance in overcoming thechallenges. Details of the specific programmes and technical assistance projects to reduce reoffendingthat were presented during the discussion session are available in Annex 2.
Country Presentations
3. The country presentations were designed to illustrate some of the ways in which criminal justice systems
around the world are pursuing efforts to prevent crime and promote reintegration by reducing reoffending.
The presentations identified numerous challenges to the implementation of effective measures indeveloping countries. Unsurprisingly, prison overcrowding, which was noted to have resulted largely
from overreliance on custodial sentences and prolonged pretrial detention, undermines rehabilitative
prison environments. The ability of criminal justice systems to respond to this issue is limited by endemic
problems such as the lack of financial resources, lack of equipment and facilities, insufficient staff andinadequate training. These challenges are exacerbated by the lack of administrative structures to handle
community release schemes.
4. Prison environments remain a significant obstacle to the success of – and even the ability to provide –prison-based rehabilitation programmes. In Cambodia, the underdeveloped state of prison facilities puts
needed programmes on hold, resulting in the promotion primarily of agricultural programmes, which does
not provide offenders with marketable skills. In Samoa, prisons are managed by police officers, which
creates clear conflicts of interest and can undermine the rehabilitative purpose of imprisonment, while
the prevalence of organized crime within prisons undermines rehabilitation efforts in Brazil. Kenya
reported a lack of training and manuals on rehabilitative practices, which is an issue faced by many
developing countries. Efforts to expand non-custodial measures and community support are often frustrated
by lack of public awareness and understanding of the purpose of community corrections. Most countries
reported issues with the stigmatization of offenders by the community and weak political support for or
prioritization of offender rehabilitation, and strong cultural traditions and attitudes against offenders werereported in Timor-Leste, Cambodia and Samoa. The absence of disaggregated data and reliable statistics is
an issue that impacts all aspects of the criminal justice system in developing countries. Data on arrests,
imprisonment and reoffending can help policymakers and practitioners throughout the system makebetter rehabilitative decisions.
5. Despite these significant challenges, the country presentations identified promising practices aimed at
reducing reoffending.  Timor-Leste has, on its own initiative and with the support of technical assistanceproviders, developed measures for reducing reoffending that include assessment and evaluation procedures,
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a court-supervised release process, and family reintegration strategies. Samoa has had success with art
and painting programmes, which are low cost, easy to implement and can result in income to the offenderand the correctional institution through revenue sharing upon the sale of the artwork. Also in Samoa, theGraffiti Project, conducted in partnership with the private sector, was reported as effective to make youth
realize the difficulty of removing graffiti from buildings and preventing the practice of graffiti generally.
Finally, although underutilized, Samoa reported that its indigenous infrastructure provides opportunities
for greater partnership in reducing reoffending through community-based measures. In Cambodia, prisonbased vocational training programmes and subsequent employment were identified as factors that could
significantly reduce reoffending. In Kenya, the probation service has succeeded in obtaining greater
resources by demonstrating its value to key criminal justice stakeholders (particularly judges) in several
ways. Social inquiry reports are used to assess offenders prior to the imposition of a sentence, andinformal social control (family and community) and a multidimensional, multi-stakeholder approach isrecognized as key to reducing reoffending, as demonstrated by Kenya’s use of Community Probation
Volunteers. Kenya’s experience also demonstrated the important role of probation in handling the
emergency release of prisoners during the Covid-19 pandemic. As Brazil faces issues of overcrowding,non-prosecution agreements are used as a measure to avoid incarceration, and “semi-open” prison regimes
are used to facilitate rehabilitation by promoting work release so that offenders can find employment insociety.
Discussion Session
Session 1: Use of non-custodial measures to prevent reoffending
6. While prison overcrowding can impact countries at any stage of development, the impact on developing
countries is particularly severe. It was noted that non-custodial measures are necessary to decongest
prisons, and they have the added benefit of being more effective at rehabilitating most offenders andmaintaining family ties. The discussion identified challenges that many countries face in implementing
such measures: (i) lack of an appropriate legal framework (inadequate range of non-custodial sentences
and measures, lack of probation and parole systems, and the absence of gender-responsive measures aswell as measures that address special needs, such as drug use disorders and mental health needs); (ii)insufficient development of sentencing guidelines that would be needed to avoid overreliance on custodial
sentences by courts; (iii) low levels of awareness and understanding among other key stakeholders,
including the police, prosecutors, correctional authorities, policymakers and the general public; (iv) limited
infrastructure, capacity and resources; (v) insufficient cooperation between the relevant authorities andwith the private sector and representatives of the community; and (vi) insufficient research on theeffectiveness of different sentences and measures.
7. Given the relative insufficiency of legal frameworks and low awareness, technical assistance projects may
require extensive training materials and workshops, and the translation of materials into local languages.
Other valuable resources may include the creation or revision of forms to help social workers and judges
assess risk and analyse treatment options for offenders who would benefit from non-custodial sanctions
or measures. Electronic monitoring was also discussed as a measure to facilitate community-based
treatment, and it was reported that it could contribute to reducing reoffending, provided that it is used,
where appropriate, in conjunction with psychosocial and other forms of tailored support, and that the riskof net-widening is taken into consideration. The difficulty of assessing the effectiveness of these approaches
was discussed, and it was suggested that evidence of effectiveness is important because of the scepticism
that some justice systems or policymakers have toward non-custodial measures due to the perceptionthat they lack a deterrent effect.
Session 2: Rehabilitation in the custodial environment
8. The projects and practices presented during the session demonstrated the critical importance of technicalassistance projects in addressing and making meaningful improvement to custodial environments indeveloping countries. Staff training on the implementation of the Nelson Mandela Rules, the Bangkok
Rules and other relevant standards and norms is an important first step not only to ensure that personnel
understand and respect the relevant human rights standards but also to identify performance gaps and102

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urgent priorities. In addition to training, many of the projects presented focused on introducing offenderassessment and classification tools in order to enhance prison safety and security and to enhance theability of correctional officials to provide individualized treatment. Meaningful prison work programmes
were also discussed as a means to support social reintegration of offenders by providing offenders withvocational skills and increase their employability upon release. In a developed country, offenders who
worked in the prison industry programme are reported as being only one third as likely to reoffend. Whilethese programmes have great potential in developing countries, it was observed that the creation of arehabilitative environment in line with the Nelson Mandela Rules, the Bangkok Rules and other relevant
United Nations standards and norms is a precondition to success.
Session 3: Effective supervision and support of offenders in the community
9. The discussion focused on the importance of multi-stakeholder partnerships to ensure effective support
for offenders in the community. The social partnership model was introduced as a means to organize theprivate sector to provide offenders with knowledge, resources and opportunities necessary to succeed insociety, and the offenders who benefited from these partnerships often developed pride in their vocational
accomplishments and their successful rehabilitation. The importance of family contact and continued
engagement in society during incarceration was also stressed as a means to facilitate reintegration upon
release, but practices should be gender-responsive and provide alternative solutions, such as halfway
houses, when family contact is not practical or is inappropriate. To promote a multi-stakeholder,multidisciplinary approach to offender rehabilitation and reintegration, national action plans and requiringknowledge of offender rehabilitation for the certification of certain professionals, such as social workers
and psychologists, can be considered. Additionally, peer support groups were discussed as an effective
measure to maintain offender motivation and progress toward rehabilitation while reintegrating into
society.
Session 4: Measuring the impact of strategies to reduce reoffending
10. The presentations and interventions introduced sophisticated and innovative approaches to measuring
the impact of strategies to reduce reoffending, such as demonstrating programme accountability andeffectiveness through cost-benefit analysis. Another approach involved the integration of data collection
systems and the use of statistical models for programme evaluation. As many developing countries lackreliable data, technical assistance to support data collection and the compilation of crime statistics can add
sustained value to a criminal justice system. On the issue of defining “reoffending”, some scepticism was
expressed regarding the adoption of a single metric or indicator, and it was suggested that technicalassistance focus on encouraging the adoption of clear definitions, which may vary somewhat in eachcountry and each individual project, and providing guidance on the use of accurate terminology. It wasalso stated that issuing identity documents is a problem in many developing countries, leading to the
problem of identification of individuals and tracking them through the justice system. In addition to theimportance of quantitative data, it was also observed that complementary qualitative data, whether
through clinical practice or in the form of personal stories of offenders, can help build a narrative toinfluence policymakers and the media on the value of successful rehabilitation and reintegration strategies.
Recommendations
11. Participants shared the following ideas on enhancing technical assistance for developing countries tosupport their efforts to reduce reoffending:(a) Use of non-custodial measures to prevent reoffending(i) Provide assistance through a step-by-step approach that targets the availability and quality of noncustodial measures and the ability to apply them effectively. This approach may require detailed
review of legislation and sentencing policies (e.g., sentencing and prosecutorial guidelines) to ensurethat non-custodial measures are available, are gender responsive and can be properly applied, as
well as review of substantive criminal law to ensure that outdated penal offences and punishments
are repealed and that sanctions, including non-custodial measures and custodial sentences, are103

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proportionate to the offence;(ii) Provide key stakeholder groups (such as law enforcement officials, prosecutors, judges, probation
officers, lawyers, victims, offenders, social services and non-governmental organizations, community
volunteers) with information and training on the functions and use of non-custodial measures, forexample, through the preparation of handbooks, toolkits and other practical resources;(iii) Promote closer cooperation among criminal justice decision makers and representatives ofcommunity-based-services agencies in order to identify and respond to the needs of offenders, inparticular members of vulnerable populations, and promote utilization of alternative and restorative
justice processes, including customary justice mechanisms and indigenous infrastructure, in linewith the domestic legal system and relevant international standards and norms;(iv) Promote the implementation of non-custodial measures that are based on individualized assessments,
which may include psychosocial and other tailored support and protocols for referral from criminal
justice agencies to the respective health, mental health, social welfare or other agencies.
(b) Rehabilitation in the custodial environment(i) Focus on raising prison conditions and substantial compliance with the Nelson Mandela Rules, theBangkok Rules and other relevant United Nations standards and norms as a basis for effective
treatment programmes, based on the understanding that the prison environment directly impacts
inmates’ prospects of rehabilitation and reintegration;(ii) Provide training on the Nelson Mandela Rules, the Bangkok Rules and other relevant United
Nations standards and norms;(iii) Introduce offender assessment and classification tools to enhance prison safety and security andenable the provision of individually tailored treatment programmes;(iv) Facilitate contact with family and friends and supplement visitation with use of technology andother means insofar as it is conducive to maintaining ties;(v) Facilitate enhanced access to treatment and other support services;(vi) Develop and promote vocational-training and life-skills-development programmes that are notguided solely by existing gender stereotypes and without undue influence from private actors,
including through the establishment of prison industry schemes and in partnership with thecommunity, which may include the private sector;(vii) Promote inter-agency and multi-stakeholder cooperation to ensure the continuity of care as theoffender moves from the custodial to the community setting.
(c) Effective supervision and support of offenders in the community(i) Promote partnership with the private sector to create employment opportunities for offenders, toprovide entrepreneurship training and small business guidance to enable offenders to start theirown businesses, and to expand access to capital and other resources for offender rehabilitation andreintegration;(ii) Raise public awareness and enhance engagement of stakeholders, including the private sector, by
publicizing ex-offenders' positive experiences of rehabilitation through employment andentrepreneurship, and involve ex-offenders as peer counsellors and role models in rehabilitation andreintegration programmes;(iii) Support community corrections agencies in identifying new community partnerships including
with universities and other educational institutions, social welfare organizations and volunteers,
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and involving them in offender rehabilitation and reintegration;(iv) Assist countries with the establishment of post-release support programmes and facilities, such as
halfway houses, aftercare treatment centres, case management services, employment andeducational programmes, etc., in line with the Tokyo Rules;(v) Encourage partnerships with peer support groups with the aim of ensuring ongoing community
support beyond the term of the criminal justice intervention.
(d) Measuring the impact of strategies to reduce reoffending(i) Clearly define “reoffending” and similar terms within the context of specific studies, reports andtechnical assistance projects;(ii) Provide sustainable, progressive (step-by-step) assistance to countries in their development of datacollection systems and processes for the analysis and publication of statistics in the area of crime
prevention and criminal justice;(iii) Incorporate data collection and analysis with the implementation of evidence-based technicalassistance projects;(iv) Promote quantitative approaches to measure the effectiveness of strategies to reduce reoffending,
improve rehabilitation programmes and demonstrate their impact – reliable data can convince
politicians and the public of the positive impact of a project as well as enhance motivation offrontline officers to pursue and expand effective practices;(v) At the same time, promote qualitative approaches to effectiveness by, for example, collecting
stories of success and challenges – both by and about offenders – and implementing a professional
media strategy to raise public awareness and understanding.
(e) Measures to enhance collaboration and information-sharing among technical assistance providers(i) The PNI should, in close cooperation with the UNODC, facilitate information sharing on promisingtechnical assistance projects and practices in the field of crime prevention and criminal justicethrough regular in-person meetings and other forums;(ii) Governments, the private sector and other donors are encouraged to provide adequate financial
and other resources to ensure the ability of technical assistance providers to engage in suchcollaboration and information-sharing forums.
Closing of the Session
12. Prior to adjournment, the PNI experts collectively expressed thanks to UNAFEI for organizing the eventand for arranging an online lecture from the Tokyo Public Prosecutors’ Office and study visits to theSupreme Court of Japan, including a courtesy call on Justice Toru Sakai, the Higashi Nihon (East Japan)
Adult Medical Corrections Center and Shisui-en Halfway House, which enriched the meeting and improved
their understanding of the Japanese criminal justice system and practices to reduce reoffending.
20 OCTOBER 2022
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ANNEX 1PARTICIPANT LIST
（In-person participants）
1. Ms. Jee Aei LEE, Crime Prevention and Criminal Justice Officer, United Nations Office on Drugs andCrime (UNODC)
2. Ms. Fumiko AKASHI, Consultant, United Nations Office on Drugs and Crime (UNODC)
3. Mr. Leif VILLADSEN, Deputy Director, United Nations Interregional Crime and Justice ResearchInstitute (UNICRI)
4. Mr. Andrew Karokora MUNANURA, Legal and Training Consultant, United Nations African Institute for
the Prevention of Crime and the Treatment of Offenders (UNAFRI)
5. Mr. Douglas DURAN CHAVARRIA, Director, United Nations Latin American Institute for the Preventionof Crime and the Treatment of Offenders (ILANUD)
6. Dr. Vincent Cheng YANG, Senior Associate, International Centre for Criminal Law Reform & Criminal
Justice Policy (ICCLR)
7. Mr. Josh OUNSTED, Thematic Leader, Access to Justice, Raoul Wallenberg Institute of Human Rights
and Humanitarian Law (RWI)
8. Dr. Phiset SA-ARDYEN, Executive Director, Thailand Institute of Justice（TIJ）
9. Ms. Chontit CHUENURAH, Director of Office for the Bangkok Rules and Treatment of Offenders, Thailand
Institute of Justice（TIJ）（In-person observers）（TIJ）
1. Dr. Matti Tapani JOUTSEN, Special Advisor, Thailand Institute of Justice
2. Mr. Clarence Joseph Thomsen NELSON, Justice, Supreme Court of Samoa
3. Mr. Severino Hunt GAÑA Jr., International Director, Asia Crime Prevention Foundation (ACPF)(Online participants)
1. Ms. Marcella CHAN, Director of Programs, International Centre for Criminal Law Reform & Criminal
Justice Policy (ICCLR)
2. Dr. Mana YAMAMOTO, Research Expert, United Nations Interregional Crime and Justice ResearchInstitute (UNICRI)（UNAFEI Faculty）
1. Mr. MORINAGA Taro, Director
2. Ms. IRIE Junko, Deputy Director
3. Ms. KIDA Makiko, Professor
4. Ms. TAKAI Ayaka, Professor
5. Mr. YAMANA Rompei, Professor
6. Mr. KUBO Hiroshi, Professor

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7. Mr. OKUDA Yoshinori, Professor
8. Mr. NAKAYAMA Noboru, Professor
9. Ms. MIYAGAWA Tsubura, Professor
10. Mr. OTSUKA Takeaki, Professor
11. Ms. TANAKA Mii, Professor
12. Mr. Tom SCHMID, Linguistic Adviser

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ANNEX 2
REDUCING REOFFENDING: PROMISING PRACTICES AND TECHNICAL ASSISTANCE PROJECTS
Non-custodial Measures
With the objective of promoting the effective use of non-custodial measures, UNODC’s project in Sri Lanka
undertook a detailed assessment, organized a series of webinars with national stakeholders, convened anational forum for sharing recommendations and assisted in the formulation of a national strategic plan. To
increase the capacity of criminal justice actors, webinars and capacity-building workshops were conductedin each of the nine provinces of Sri Lanka to reach as many practitioners as possible nationwide. UNODC
also endeavoured to raise awareness on the rationale and benefits of using non-custodial measures throughdevelopment of a handbook on community-based correction procedure, assistance with the offendermanagement system and developing a training module on custodial measures for judges. To maximize theuse and reference of its tools, UNODC translated its tools into local languages wherever possible.
TIJ has been working to promote the implementation of the Bangkok Rules by working on gender-sensitive
solutions, including preparation, together with the UNODC, of a Toolkit on Gender-Responsive Non-Custodial
Measures. The Toolkit was the product of an expert meeting in Bangkok and aims to ensure gender equality
in the use and application of non-custodial measures, addressing the negative impact of incarceration on
women convicted of minor crimes. The Toolkit draws on the Tokyo Rules and the Bangkok Rules to offer
non-custodial sentencing options for countries seeking to implement gender-responsive policies. To promoteand disseminate the Toolkit, it was translated into Thai, and a workshop was held to promote it.
ILANUD has designed a matrix of risk and protection factors aimed at building restorative plans in juvenile
justice processes. The matrix has been used by the psychosocial teams of the Costa Rican judiciary to assist
judges and social workers to gather and analyse treatment options for juveniles. The matrix includes 13
protection factors and 24 risk factors, such as education, work, socioeconomic and family factors, andrelationships. Importantly, the tool does not stigmatize the juvenile and is used to identify positive treatment
opportunities. ILANUD introduced the study in Argentina which demonstrated the impact of electronicmonitoring in conjunction with psychosocial support on the reduction of recidivism compared to imprisonment.
It compared the re-arrest rates of two groups of similar population based on factors including the seriousnessof the crime: the first group is made up of individuals whose last period under supervision was spent underelectronic monitoring, and the other one spent their last period under supervision in prison. The result
showed that the group released on electronic monitoring experienced reduced re-arrest rates of between 11
and 16 percentage points, or approximately half the baseline recidivism rate.
http://nrs.harvard.edu/urn-3:HUL.InstRepos:28548029
Rehabilitative Custodial Environments
UNODC is engaged in a three-year technical assistance project in Ghana to strengthen the compliance of the
Ghana Prisons Service with the Nelson Mandela Rules. The project’s main goals are: (i) to improve the mosturgent prison conditions, (ii) to implement a classification tool and (iii) to implement rehabilitation programmes
for social reintegration. In-person training on the Nelson Mandela Rules is targeting 1,000 out of Ghana’s
approximately 9,000 prison officers, complemented by UNODC’s e-learning course on the Rules. Prison
conditions are being improved by prioritizing urgent needs such as access to health care and other basic
services, and a new classification tool aims at enhancing prisoners’ rehabilitation and prison security andsafety procedures. To enhance rehabilitation, the project is focusing on improving prisoners’ contact with theoutside world and providing education programmes and vocational training, psychosocial support and postrelease social reintegration measures. Legislative assistance to update and establish laws on prison
management and community service and parole regulations was highlighted as an important measure forthe sustainability of the improvements made during the project.
ICCLR introduced CORCAN – Canada’s prison industry programme through which inmates manufacture
goods (furniture, office supplies, etc.) and provide services (laundry, farming, etc.). The programme is afundamental component of the offender rehabilitation scheme by helping incarcerated offenders gain work
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increases employability after release, and those who worked for CORCAN are only one third as likely toreoffend. It was noted that from 2017 to 2018, inmates earned 14,100 vocational certificates; 61 per cent ofoffenders employed with CORCAN are granted day parole; and 58 per cent of offenders who obtained a tradecertification found community employment in their trade. The overall results were regarded as positive.
UNICRI has broad experience introducing prison-based assessment tools – coupled with training on
interviewing techniques – to countries seeking to enhance rehabilitative environments in prison, and thesetools have been applied to the assessment of violent extremist offenders. UNICRI’s assistance to Mali helped
improve rehabilitation and reintegration of violent extremist offenders in and after detention, and prisonbased assessment was complemented by a programme outside prison to promote alternatives to violence.
The programme also supported prison management by delivering capacity-building, gap analysis anddevelopment of a Risk Assessment Tool to determine the level of radicalization leading to violence, and bytraining prison staff to use the tool. UNICRI is developing plans to provide assistance to Moldova to strengthen
the inter-agency coordination mechanism to ensure seamless transition from prison to the community, andassistance to the Central African Republic to introduce an offender classification system and training to help
correctional officials identify the individualized needs of each detainee. UNICRI is also planning to use
artificial intelligence and related technologies to facilitate the provision of services, including human-centred
rehabilitation.
Effective supervision and support of offenders in the community
ILANUD has provided legal technical assistance to El Salvador in conjunction with the UNDP to revise thelegal framework to improve possibilities for social reintegration, mainly of individuals affiliated with gangs,
and to draft a restorative justice law. ILANUD also supported the adoption of regulations to facilitate theexpungement of criminal records in Costa Rica. By expunging criminal records for minor crimes (up to athree-year sentence) immediately upon completion of the sentence, the measure is intended to increase theemployability of offenders. For more serious crimes, wait periods for expungement increase from 1 to 3 to
10 years. Previously, there was a 10-year wait period for expungement of all criminal records regardless ofthe seriousness of the offence.
TIJ supports the social partnership model for social reintegration by offering practical work experience towomen scheduled for release from prison.   The project offers work experience in massage therapy, spa
treatment and coffeehouses and included the opening of a museum on women prisoners, which tells personal
stories of their pathways to crime and to rehabilitation. The aim of the museum is to enhance publicawareness by providing a detailed understanding of the complex lives of women prisoners. TIJ also introduced
its “Hygiene Street Food for Chance” programme, though which it partnered with the private sector toprovide food-industry training from professional chefs and to provide women with food carts to sell street
food in a hygienic manner.
UNAFRI has assisted a project to enhance family contact in Uganda. In Africa, stigmatization of offenders is
a serious problem that often results in their ostracization from society.  The project, “From Prison BackHome”, forms the bedrock of Uganda’s rehabilitation and reintegration programme, asserting that, to bringan offender back into society, a needle is required to re-stitch the torn social fabric. The project advocatedstarting rehabilitation immediately upon incarceration and maintaining family contact throughout thecustodial sentence. Other measures promoted by the project include vocational training for offenders andlinking inmates with trade schools and universities around the world, ensuring that inmates are exposed tothe outside world through access to print and broadcast media, and promoting communication between
inmates and their families through social workers. UNAFRI is also encouraging the government of Uganda
to establish a legal framework for community care.
Measuring the impact of strategies to reduce reoffending
TIJ developed a model to prove the cost-benefit of its projects to its stakeholders. TIJ is following up withparticipants through detailed interviews within eight months of programme completion. One of the data
points is income earned through the field in which the offender was trained. Direct costs and opportunity
costs of reoffending are also estimated, as well as the social costs of crime and related governmental
expenditures.  The reoffending rate of the programme is also compared with the national reoffending rate.
109

RESOURCE MATERIAL SERIES No. 115
For each dollar invested in the programme, TIJ has calculated 8.2 dollars in benefits to society. TIJ hopes toapply this analysis to all of its programmes in the future.
UNAFEI introduced Japan’s practices on data collection through the System for Crime and Recidivism
Prevention (SCRP), which links up data from public prosecutors’ offices, the Correction Bureau and the
Rehabilitation Bureau. This has made it possible to conduct cross-organization evaluation. The Ministry ofJustice Case Assessment Tool (MCJA) programme was developed to identify the likelihood of reoffending
among juveniles and involved the statistical analysis of 6,000 juveniles admitted to juvenile classification
homes. The analysis found that a substance abuse treatment programme was effective at reducing reoffending
within the first six months of programme completion. It was observed that when providing technicalassistance, evidence-based practices need to be implemented over the long term, realistically and sustainably.
UNAFEI also shared Japan’s experience providing technical assistance to Uzbekistan on data collection andthe publication of crime statistics in the form of white papers. The importance of taking a long-term approachand pursuing steady, incremental success was underscored.

110

RESOURCE MATERIAL SERIES
No. 115APPENDIX

UNAFEI

PHOTOGRAPHS
THE 179th INTERNATIONAL TRAINING COURSE

113

RESOURCE MATERIAL SERIES No. 115

THE 24th UNAFEI UNCAC TRAINING PROGRAMME114

APPENDIXRESOURCE MATERIAL SERIES INDEX
Vol.

Course No.

Course Dates

1

Public Participation in Social Defence

25

Sep-Dec 1970

2

Administration of Criminal Justice26

Jan-Mar 1971

3

[Corrections]27

Apr-Jul 1971

[Police, Prosecution and Courts]

28

Sep-Dec 1971

Social Defence Planning

29

Feb-Mar 1972

Treatment of Crime and Delinquency

30

Apr-Jul 1972

United Nations Training Course in Human Rights in the
Administration of Criminal Justicen/a

Aug-Sep 1972

Administration of Criminal Justice31

Sep-Dec 1972

4
5
6

Training Course Name

Reform in Criminal Justice32

Feb-Mar 1973

Treatment of Offenders

33

Apr-Jul 1973

7

[Administration of Criminal Justice]34

Sep-Dec 1973

8

Planning and Research for Crime Prevention

35

Feb-Mar 1974

Administration of Criminal Justice36

Apr-Jun 1974

International Evaluation Seminar37

Jul 1974

Treatment of Juvenile Delinquents and Youthful Offenders

38

Sep-Nov 1974

The Roles and Functions of the Police in a Changing Society

39

Feb-Mar 1975

9
10

Treatment of Offenders

40

Apr-Jul 1975

NB: Resource Material Series Index, Nos. 1-10 (p. 139)n/a

Oct 1975

11

Improvement in the Criminal Justice System

41

Sep-Dec 1975

12

Formation of a Sound Sentencing Structure and Policy

42

Feb-Mar 1976

Treatment of Offenders

43

Apr-Jul 1976

13

Exploration of Adequate Measures for Abating and Preventing
Crimes of Violence

44

Sep-Dec 1976

14

Increase of Community Involvement

45

Feb-Mar 1977

Treatment of Juvenile Delinquents and Youthful Offenders

46

Apr-Jul 1977

Speedy and Fair Administration of Criminal Justice47

Sep-Dec 1977

Prevention and Control of Social and Economic Offences48

Feb-Mar 1978

Report of United Nations Human Rights Training Coursen/a

Dec 1977

Treatment of Offenders

49

Apr-Jul 1978

Dispositional Decisions in Criminal Justice Process50

Sep-Dec 1978

Treatment of Dangerous or Habitual Offenders

51

Feb-Mar 1979

Community-Based Corrections

52

Apr-Jul 1979

18

Roles of the Criminal Justice System in Crime Prevention

53

Sep-Dec 1979

19

Arrest and Pre-Trial Detention

54

Feb-Mar 1980

Institutional Treatment of Adult Offenders

55

Apr-Jul 1980

Institutional Treatment of Adult Offenders

55

Apr-Jul 1980

Integrated Approach to Effective and Efficient Administration of
Criminal Justice56

Sep-Nov 1980

15

16
17

20

NB: Resource Material Series Index, Nos. 1-20 (p. 203)
21

Crime Prevention and Sound National Development

Mar 1981
57

Feb-Mar 1981

115

RESOURCE MATERIAL SERIES No. 115

Integrated Approach to Effective Juvenile Justice Administration(including Proposed Guidelines for the Formulation of theStandard Minimum Rules for Juvenile Justice Administration: A
draft prepared by UNAFEI on the basis of the reports of thestudy groups at the 58th International Training Course)

58

May-Jul 1981

Contemporary Problems in Securing an Effective, Efficient andFair Administration of Criminal Justice and Their Solutions

59

Feb-Mar 1982

Securing Rational Exercise of Discretionary Powers at
Adjudication and Pre-adjudication Stages of Criminal Justice
Administration

60

Apr-Jul 1982

23

Improvement of Correctional Programmes for More Effective
Rehabilitation of Offenders

61

Sep-Nov 1982

24

Promotion of Innovations for Effective, Efficient and Fair
Administration of Criminal Justice62

Feb-Mar 1983

Community-Based Corrections

63

Apr-Jul 1983

The Quest for a Better System and Administration of Juvenile
Justice64

Sep-Dec 1983

Documents Produced during the International Meeting of Expertson the Development of the United Nations Draft Standard
Minimum Rules for the Administration of Juvenile Justicen/a

Nov 1983

International Cooperation in Criminal Justice Administration

65

Feb-Mar 1984

Promotion of Innovation in the Effective Treatment of Prisoners
in Correctional Institutions

66

Apr-Jul 198427

An Integrated Approach to Drug Problems

67

Sep-Dec 1984

28

Contemporary Asian Problems in the Field of Crime Prevention
and Criminal Justice, and Policy Implications

68

Feb-Mar 1985

Report of the Fifth Meeting of the Ad Hoc Advisory Committeeof Experts on UNAFEI Work Programmes and Directions

n/a

Mar 1985

Report of the International Workshop on the Role of Youth
Organizations in the Prevention of Crime Among Youthn/a

Jul 1985

Follow-up Team for Ex-Participants of UNAFEI Courses

n/a

Dec 1985

Community-Based Corrections

69

Apr-Jul 1985

29

In Pursuit of Greater Effectiveness and Efficiency in the Juvenile
Justice System and Its Administration70

Sep-Dec 1985

30

Promotion of Innovation in Criminal Justice Administration for
the Prevention of New Criminality

71

Feb-Mar 1986

The Quest for Effective and Efficient Treatment of Offenders in
Correctional Institutions

72

Apr-Jul 1986

Economic Crime: Its Impact on Society and Effective Prevention73

Sep-Nov 1986

Report of the International Seminar on Drug Problems in Asiaand the Pacific Regionn/a

Aug 1986

Advancement of Fair and Humane Treatment of Offenders andVictims in Criminal Justice Administration74

Feb-Mar 1987

Non-institutional Treatment of Offenders: Its Role andImprovement for More Effective Programmes

75

Apr-Jun 1987

Evaluation of UNAFEIʼs International Courses on Prevention of
Crime and Treatment of Offenders, and Drug Problems in Asia

76

Aug-Sep 1987

Crime Related to Insurance77

Oct-Dec 1987

22

25

26

31

32

33

116

APPENDIX

Report of the Sixth Meeting of the Ad Hoc Advisory Committeeof Experts on UNAFEI Work Programmes and Directionsn/a

Sep 1987

Report of the Workshop on Implementation Modalities for the
Twenty-Three Recommendations Adopted by the International
Seminar on Drug Problems in Asia and the Pacific Regionn/a

Sep 1987

Footprints, Contemporary Achievements and Future
Perspectives in Policies for Correction and Rehabilitation of
Offenders78

Feb-Mar 1988

Search for the Solution of the Momentous and Urgent Issues inContemporary Corrections

79

Apr-Jul 1988

Resolution of the Asia and Pacific Regional Experts Meetingn/a

Mar 1988

Report of the Meeting of Experts on the United Nations Draft
Standard Minimum Rules for Non-Custodial Measures (TheTokyo Rules)n/a

Jul 1988

35

Quest for Effective International Countermeasures to Pressing
Problems of Transnational Criminality

80

Sep-Nov 1988

36

Advancement of the Integration of Criminal Justice
Administration

81

Feb-Mar 1989

Innovative Measures for Effective and Efficient Administration of
Institutional Correctional Treatment of Offenders

82

Apr-Jul 1989

Report of the Expert Group Meeting on Adolescence and Crime
Prevention in the ESCAP Regionn/a

Aug 1989

Crime Prevention and Criminal Justice in the Context ofDevelopment83

Sep-Nov 1989

International Workshop on Victimology and Victimʼs Rights

n/a

Oct 1989

Policy Perspectives on Contemporary Problems in Crime
Prevention and Criminal Justice Administration

84

Jan-Mar 1990

Wider Use and More Effective Implementation of Non-custodial
Measures for Offenders

85

Apr-Jun 1990

39

Search for Effective and Appropriate Measures to Deal with the
Drug Problem

86

Sep-Dec 1990

40

Development of an Effective International Crime and Justice
Programme

87

Jan-Mar 1991

Institutional Treatment of Offenders in Special Categories

88

Apr-Jul 1991

NB: Resource Material Series Index, Nos. 21-40 (p. 333)

n/a

n/a

41

Effective and Innovative Countermeasures against Economic
Crime

89

Sep-Dec 1991

42

Quest for Solutions of the Pressing Problems of Contemporary
Criminal Justice Administration

90

Jan-Feb 1992

Further Use and Effectual Development of Non-Custodial
Measures for Offenders

91

Apr-Jul 1992

43

Quest for Effective Methods of Organized Crime Control

92

Sep-Nov 1992

44

Policy Perspective for Organized Crime Suppression

93

Feb-Mar 1993

Current Problems in Institutional Treatment and Their Solution

94

Apr-Jul 199345

Effective Countermeasures against Crimes Related to
Urbanization and Industrialization—Urban Crime, Juvenile
Delinquency and Environmental Crime95

Sep-Dec 1993

46

Promotion of International Cooperation in Criminal Justice
Administration

96

Jan-Mar 1994

34

37

38

117

RESOURCE MATERIAL SERIES No. 115

Effective Treatment of Drug Offenders and Juvenile Delinquents

97

Apr-Jul 1994

47

Economic Crime and Effective Countermeasures against It

98

Sep-Dec 1994

48

The Effective Administration of Criminal Justice: Public
Participation and the Prevention of Corruption

99

Jan-Mar 1995

The Institutional Treatment of Offenders: Relationships with
Other Criminal Justice Agencies and Current Problems in
Administration

100

Apr-Jul 1995

49

The Fair and Efficient Administration of Criminal Justice: The
Proper Exercise of Authority and Procedural Justice101

Sep-Dec 1995

50

Crime Prevention through Effective Firearms Regulation

102

Jan-Mar 1996

51

Improvement of the Treatment of Offenders through theStrengthening of Non-custodial Measures

103

Apr-Jul 1996

International Cooperation in Criminal Justice Administration

104

Sep-Nov 1996

The Effective Administration of Criminal Justice for thePrevention of Corruption by Public Officials

105

Jan-Feb 1997

The Quest for Effective Juvenile Justice Administration

106

Apr-Jul 1997

The Role and Function of Prosecution in Criminal Justice107

Sep-Nov 1997

The Ninth Meeting of the Ad Hoc Advisory Committee ofExperts on UNAFEI Work Programmes and Directionsn/a

Oct 1997

Current Problems in the Combat of Organized Transnational
Crime

108

Jan-Feb 1998

Effective Treatment Measures for Prisoners to Facilitate Their
Reintegration into Society

109

Apr-Jul 1998

Effective Countermeasures against Economic and Computer
Crime

110

Aug-Nov 1998

The Role of Police, Prosecution and the Judiciary in the Changing
Society111

Jan-Feb 1999

Participation of the Public and Victims for More Fair andEffective Criminal Justice112

Apr-Jul 1999

The Effective Administration of Criminal Justice for thePrevention of Corrupt Activities by Public Officials

113

Aug-Nov 1999

International Cooperation to Combat Transnational Organized
Crime—with Special Emphasis on Mutual Legal Assistance andExtradition

114

Jan-Feb 2000

Current Issues in Correctional Treatment and Effective
Countermeasures

115

May-Jun 2000

Effective Methods to Combat Transnational Organized Crime in
Criminal Justice Processes

116

Aug-Nov 2000

Current Situation and Countermeasures against Money
Laundering

117

Jan-Feb 2001

Best Practices in the Institutional and Community-Based
Treatment of Juvenile Offenders

118

May-Jul 2001

Current Situation of and Countermeasures against Transnational
Organized Crime

119

Sep-Nov 2001

60

Effective Administration of the Police and the Prosecution in
Criminal Justice120

Jan-Feb 2002

61

Enhancement of Community-Based Alternatives to Incarceration
at all Stages of the Criminal Justice Process

121

May-Jul 2002

52
53

54

55

56

57

58

59

118

APPENDIX

62

The Effective Administration of Criminal Justice to Tackle
Trafficking Human Beings and Smuggling of Migrants

122

Sep-Oct 2002

63

The Protection of Victims of Crime and the Active Participationof Victims in the Criminal Justice Process Specifically
Considering Restorative Justice Approaches

123

Jan-Feb 2003

64

The Effective Prevention and Enhancement of Treatment for
Drug Abusers in the Criminal Justice Process

124

Apr-Jun 2003

65

Effective Countermeasures against Illicit Drug Trafficking andMoney Laundering125

Sep-Oct 2003

Sixth International Training Course on Corruption Control in
Criminal Justice

6th UNCAC

66

Economic Crime in a Globalizing Society—Its Impact on theSound Development of the State

126

Jan-Feb 2004

67

Implementing Effective Measures for the Treatment of Offenders
after Fifty Years of United Nations Standard Setting in Crime
Prevention and Criminal Justice127

May-Jun 2004

Measures to Combat Economic Crime, Including Money
Laundering

128

Aug-Oct 2004

68

Crime Prevention in the 21st Century—Effective Prevention of
Crime Associated with Urbanization Based upon Community
Involvement and Prevention of Youth Crime and Juvenile
Delinquency

129

Jan-Feb 2005

69

Integrated Strategies to Confront Domestic Violence and Child
Abuse

130

May-Jun 2005

7th UNCAC

Oct-Nov 2005

Seventh Special Training Course on Corruption Control in
Criminal Justice

Nov 2003

70

The Use and Application of the United Nations Declaration of
Basic Principles of Justice for Victims of Crime and Abuse ofPower—Twenty Years after Its Adoption

131

Aug-Oct 2005

71

Strengthening the Legal Regime for Combating Terrorism

132

Jan-Feb 2006

Eighth International Training Course on Corruption Control in
Criminal Justice

8th UNCAC

Oct-Nov 2005

72

Effective Prevention and Enhancement of Treatment for Sexual
Offenders133

May-Jun 2006

73

Challenges in the Investigation, Prosecution and Trial ofTransnational Organized Crime

134

Aug-Oct 2006

Ninth International Training Course on Corruption Control in
Criminal Justice

9th UNCAC

Oct-Nov 2006

74

Promoting Public Safety and Controlling Recidivism Using
Effective Interventions with Offenders: An Examination of Best
Practices

135

Jan-Feb 200775

Effective Measures for the Treatment of Juvenile Offenders andtheir Reintegration into Society

136

May-Jun 200776

Corporate Crime and the Criminal Liability of Corportate Entities

137

Sep-Oct 2007

10th UNCAC

Oct-Nov 2007

Tenth International Training Course on the Criminal Justice
Response to Corruption
77

Effective Legal and Practical Measures for Combating Corruption:
A Criminal Justice Response

138

Jan-Feb 2008

78

Profiles and Effective Treatment of Serious and Violent Juvenile
Offenders

139

May-Jun 2008

119

RESOURCE MATERIAL SERIES No. 115

79

140

Sep-Oct 2008

Eleventh International Training Course on the Criminal Justice
Response to Corruption

11th UNCAC

Oct-Nov 2008

The Improvement of the Treatment of Offenders through the
Enhancement of Community-Based Alternatives to Incarceration

141

Jan-Feb 2009

Effective Countermeasures against Overcrowding of Correctional
Facilities

142

May-Jun 2009

Twelfth International Training Course on the Criminal Justice
Response to Corruption

12th UNCAC

Jul-Aug 2009

Ethics and Codes of Conduct for Judges, Prosecutors and Law
Enforcement Officials

143

Sep-Nov 200981

The Enhancement of Appropriate Measures for Victims of Crime
at Each Stage of the Criminal Justice Process

144

Jan-Feb 201082

Effective Resettlement of Offenders by Strengthening“Community Reintegration Factors”

145

May-Jun 2010

83

Attacking the Proceeds of Crime: Identification, Confiscation,
Recovery and Anti-Money Laundering Measures

146

Aug-Oct 2010

The 13th International Training Course on the Criminal Justice
Response to Corruption

13th UNCAC

Oct-Nov 201080

The Criminal Justice Response to Cybercrime

84

Community Involvement in Offender Treatment

147

Jan-Feb 201185

Drug Offender Treatment: New Approaches to an Old Problem

148

May-Jun 2011

86

Securing Protection and Cooperation of Witnesses and Whistleblowers

149

Aug-Sep 2011

Effective Legal and Practical Measures against Corruption

14th UNCAC

Oct-Nov 201187

Trafficking in Persons—Prevention, Prosecution, Victim
Protection and Promotion of International Cooperation

150

Jan-Feb 201288

Evidence-Based Treatment of Offenders

151

May-Jun 201289

Trafficking in Persons—Prevention, Prosecution, Victim
Protection and Promotion of International Cooperation

152

Aug-Sep 2012

Effective Legal and Practical Measures against Corruption

15th UNCAC

Oct-Nov 2012

90

Treatment of Female Offenders

153

Jan-Feb 2013

91

Stress Management of Correctional Personnel—Enhancing the
Capacity of Mid-Level Staff

154

May-Jun 201392

Effective Collection and Utilization of Evidence in Criminal Cases

155

Aug-Oct 2013

Effective Measures to Prevent and Combat Corruption and to
Encourage Cooperation between the Public and Private Sectors

16th UNCAC

Oct-Nov 2013

93

Protection for Victims of Crime and Use of Restorative Justice
Programmes

156

Jan-Feb 201494

Assessment and Treatment of Special Needs Offenders

157

May-Jun 201495

Measures for Speedy and Efficient Criminal Trials

158

Aug-Sep 2014

17th UNCAC

Oct-Nov 2014

Effective Measures to Prevent and Combat Corruption Focusing
on Identifying, Tracing, Freezing, Seizing, Confiscating andRecovering Proceeds of Corruption
96

Public Participation in Community Corrections

159

Jan-Feb 201597

The State of Cybercrime: Current Issues and Countermeasures

160

May-Jun 201598

Staff Training for Correctional Leadership

161

Aug-Sep 2015

18th UNCAC

Oct-Nov 2015

Effective Anti-Corruption Enforcement and Public-Private andInternational Cooperation
120

APPENDIX

99

Multi-Agency Cooperation in Community-Based Treatment of
Offenders

162

Jan-Feb 2016

100

Children as Victims and Witnesses

163

May-Jun 2016101

Effective Measures for Treatment, Rehabilitation and Social
Reintegration of Juvenile Offenders

164

Aug-Sep 2016

Effective Anti-Corruption Enforcement (Investigation andProsecution) in the Area of Procurement

19th UNCAC

Oct-Nov 2016

102

Juvenile Justice and the United Nations Standards and Norms

165

Jan-Feb 2017

103

Criminal Justice Procedures and Practices to Disrupt Criminal
Organizations

166

May-Jun 2017

104

Rehabilitation and Social Reintegration of Organized Crime
Members and Terrorists

167

Aug-Sep 2017

Effective Measures to Investigate the Proceeds of Corruption
Crimes20th UNCAC

Nov-Dec 2017

105

Enhancing the Rule of Law in the Field of Crime Prevention andCriminal Justice: Policies and Practices Based on the United
Nations Conventions and Standards and Norms

168

Jan-Feb 2018

106

Criminal Justice Practices against Illicit Drug Trafficking

169

May-Jun 2018

107

Treatment of Illicit Drug Users

170

Aug-Sep 2018

Effective Criminal Justice Practices through International
Cooperation and Engagement of Civil Society for Combating
Corruption

21st UNCAC

Oct-Nov 2018108

Criminal Justice Response to Crimes Motivated by Intolerance
and Discrimination

171

Jan-Feb 2019109

Criminal Justice Responses to Trafficking in Persons andSmuggling of Migrants

172

May-Jun 2019110

Tackling Violence against Women and Children through Offender
Treatment: Prevention of Reoffending

173

Aug-Sep 2019

Detection, Investigation, Prosecution and Adjudication of HighProfile Corruption

22nd UNCAC

Oct-Nov 2019111

Prevention of Reoffending and Fostering Social Inclusion: From
Policy to Good Practice174

Jan-Feb 2020

112

n/a  (Training programmes postponed due to the Covid-19
pandemic)

n/a

n/a

113

Tackling Emerging Threats of Corruption in the Borderless andDigitalized World

114

115

23rd UNCAC

Sep-Oct 2021

Treatment of Women Offenders

175

Oct-Nov 2021

Achieving Inclusive Societies through Effective Criminal Justice
Policies and Practices

176

Nov-Dec 2021

Preventing Reoffending through a Multi-stakeholder Approach

177

Jan-Feb 2022

Protection of the Rights of Crime Victims Including Children

1st Inclusive
Societies

Mar 2022

Cybercrime and Digital Evidence

178

Jun-Jul 2022

Juvenile Justice and Beyond – Effective Measures for the
Rehabilitation of Juveniles in Conflict with the Law and Young
Adult Offenders179

Sep 2022

Chair's Summary, Enhancing Technical Assistance to Reduce
Reoffending and Promote Inclusive Societiesn/a

Oct 2022

121

RESOURCE MATERIAL SERIES No. 115

UNAFEI's 60th and ACPF's 40th Anniversary Event
Identifying, Tracing, Freezing, Seizing, Confiscating andRecovering Proceeds of Corruption: Challenges and Solutions

122

n/a

Oct 2022

24th UNCAC

Nov 2022

ISSN 0256-5471
ISBN 978-4-87033-340-6

Printed in Japan by KITAJIMA Co., LTD.